Summarium Instructio de pontificio secreto pro eo defendendo duas rationes accepit, quarum prima, officium morale objectivum spectans et in ambitu interni fori evoluta, statuitur cum moralis onerositas eius observantiae declaratur, nihil vero statuto de peccati reservatione. Altera ratio pro iuridico ordine defendendo, cuius forum efficientiae externum est, duobus coactivis instrumentis utitur, sanctione scilicet disciplinae et poenali sanctione, quae duos modos in normas publici commodi rumpendas spectant. Disciplinae sanctio perfecte definita est ac bene dispositus eius processus in applicatione qua eundem accepit atque in Regolamento generale della Cúria Romana ad quod remittit in omnibus suis argumentis. Sanctio autem poenalis in lege invenitur nec determinata nec definita. Poenam statuere, nihil vera legislantibus de eius re et de processu applicationis, relinquere valet in manus exsecutivae potestatis et institutionem et iudicium et iniunctionem poenae, neglectis flagitationibus veri momenti eis videlicet quae distinctionis munerum propriae sunt, tam necessariae ut Mali usus periculum vitetur. Similiter absque legis munimine manent principia exorta ad humanae personae dignitatem tuendam, principium scilicet convenientiae cum legibus -nunc acceptum secundum canonicae oro dinationis species proprias- vel cautionis principium. Poenalis normae relatio videtur constare in morali magis quam in iuridica acceptione pro lege tuenda. Moralis acceptio, ponens auctoritatem solí Deo responsuram, totam potestatem iudicium ferendi de culpa actus et dirimendi de habitudine erga reum própria convictione nitenti iIIi qui officio fungit sepositam habet. Hoc autem solummodo possibile in ordine morali et in eius foro peculiari, interno videlicet sacramentali: sacerdos confessarius illic in persona Christi agit, vitae rationem moralem iudicat et perspicuam notitiam nanciscitur ex reorum confessione quae sincere debet proferri cum a Deo cordis intima scrutante oriatur venia. Valde dissimilis est iuridici ordinis defensio. De humano et terreno negotio hic agitur, cuius solutionem illustrare debent virtutis iustitiae postulationes qua e iudicem quoque attingunt et cogunt ut secundum ius se gerat, id est, secundum probationis positivas normas. His positis existimat Auctor legem multo profecturam in technico-iuridica perfectione, tam necessária hac de re, si, omnibus quae supra protulit consideratis, paragraphus quae poenalem sanctionem statuit iterum exstrueretur. --- Abstract The Instruction, which regulates the observance of the Papal secret, includes two arguments. The first one is based on the objective moral imperative and is confined to the internal forum; refers to it when speaking about the gravity of the observance of the secret, but in no way does it determine the reserved nature of the sin. The juridical argument, which is confined to the external forum, can avail of two coactive instruments, namely, disciplinary and penal sanctions. These protect the two ways of violating the public interest. The disciplinary sanction is well defined and its method of application well regulated, as it refers in all cases to the Regolamento generale della Curia Romana. The penal sanction, is dealt with in the Instruction in an indefinite and not very precise manner. The establishing of a punishment without legislating far its content and means of application is equivalent to abandoning in the hands of the execuive power the nature, the determination and the imposition of the punishment thus disregarding questions of real importance such as the division of functions, so necessary if one wishes to avoid the dangers of arbitrary decisions. In this way certain principies that are meant to defend the dignity of the human person are left without legal protection, such as for example, the principie of legalit y, understood in this case according to the characteristics of Canon Law, and the principie of guarantee. The preparation of the penal norms has been influenced more by a moralistic than by a juridical idea of the defense of the law. The moralistic menta lit y starts from the position that the authority is responsible only to God, and thus leaves to the executor all power of decision about the culpability of the act and about the attitude to adopt towards the culprit, basing the judgment on personal conviction. Now this is only possible in the moral order, in the internal sacramental forum, where the priest as confessor acts in per,", ona Christi and judges moral behaviour on the evidence that the culprit himself provides; the confession must be sincere as the forgiveness comes from God who reads the innermost thoughts. The defense of the juridical order is a different question. Here one must resolve a human and earthly conflict whose solution ought to be iIIuminated by the demands of the virtue of justice, demands that affect the judge as well, obliging him to act according to the law, that is, according to positive gUidelines. For these reasons we are of the opinion that the law would gain considerably in the technical juridical sense, something very necessary in this particular point, if the paragraph dealing with the penal sanction were reformulated taking into account the points we have indicated.
En América Latina el neoliberalismo comenzó antes y ha enfrentado mayores resistencias. Es una práctica reaccionaria, un pensamiento conservador y un modelo de acumulación basado en agresiones a los trabajadores, en un marco de mayor internacionalización del capital. Hubo una etapa inicial del ajuste y otra fase posterior de privatizaciones durante las dictaduras y las transiciones posteriores. La aplicación del esquema neoclásico acentuó los desequilibrios financieros, cambiarios y productivos tradicionales y repitió los socorros estatales a los capitalistas a costa del erario público. A diferencia de otras regiones el neoliberalismo latinoamericano quedó afectado por el impacto de las sublevaciones populares. Mantiene el programa derechista, pero redujo su triunfalismo, atenuó sus ambiciones y acepta cierta intervención estatal. Puede ser visto como etapa del capitalismo, estrategia de libre-comercio, política económica o gobierno derechista. Para definir si se encuentra a la ofensiva o en repliegue hay que distinguir esas cuatro acepciones. El librecambismo postula una imaginaria inserción natural en el mercado mundial y reproduce el subdesarrollo que genera la exportación primaria. Las brechas internacionales de productividad desmienten las fantasías de convergencia entre economías avanzadas y periféricas. El neoliberalismo hereda viejas teorías de inferioridad de los nativos, atraso cultural hispanoamericano y supremacía de Occidente. Retoma los mitos positivistas de la modernización basados en la copia del capitalismo avanzado. Despotrica contra la injerencia estatal, ocultando los beneficios que obtienen los capitalistas y no explica la continuidad de esa intervención al cabo de tantos gobiernos pro-mercado. Es absurda su presentación de la informalidad laboral como una resurrección de la competencia empresaria. Como creencia, programa o cosmovisión el neoliberalismo es la principal ideología actual de las clases dominantes. No ha sido internalizada por los oprimidos. ; Neoliberalism in Latin America began earlier and has faced greater resistance. It is a reactionary practice, a conservative thought and an accumulation model based on attacks on workers, in a context of increasing internationalization of capital. There was an initial stage of adjustment and a subsequent phase of privatization during the dictatorships and the transitions. The application of the neoclassical scheme accentuated the traditional financial, foreign exchange and productive imbalances and repeated state aid to the capitalists at the expense of public funds. Unlike other Latin American neoliberalism regions it was affected by the impact of popular uprisings. It maintains the right program, but reduced its triumphalism, tempered their ambitions and accept some government intervention. It can be seen as a stage of capitalism, free-trade strategy, policy or rightist government. The free trade posits an imaginary naturally insertion in the world market and plays the underdevelopment that generates primary export. International productivity gaps deny fantasies of convergence between advanced and peripheral economies. Neoliberalism old theories inherited inferiority of Native, Hispanic cultural backwardness and supremacy of the West. Takes the positivist myths of modernization based on the copy of advanced capitalism. Rants against state interference, hiding their profits the capitalists and not explained the continuity of this intervention after so many pro-market governments. Is absurd presentation of informality as a resurrection of businesswoman competition. As belief or worldview program neoliberalism is the current main ideology of the ruling classes. There has been internalized by the oppressed. ; Na América Latina o neoliberalismo começou antes e tem enfrentado maior resistência. É uma prática reacionária, um pensamento conservador e um modelo de acumulação baseado ataques aos trabalhadores, num contexto de crescente internacionalização do capital. Houve uma fase inicial de adaptação e uma fase subsequente de privatização durante as ditaduras e as transições subsequentes. A aplicação do regime neoclássico acentuou os desequilíbrios financeiro, monetário e desequilíbrios produtivos e ajuda repetido estado para os capitalistas à custa de fundos públicos. Ao contrário de outras regiões neoliberalismo latino-americana foi afetada pelo impacto de revoltas populares. Ele mantém o programa certo, mas reduziu o seu triunfalismo, atenuada suas ambições e aceitar alguma intervenção do governo. Ele pode ser visto como um estágio do capitalismo, a estratégia de comércio livre, a política ou governo de direita. Para definir se você estiver em ofensa ou a retirada é necessária para distinguir esses quatro significados. O livre comércio postula uma inserção imaginário naturalmente no mercado mundial e desempenha o subdesenvolvimento que gera exportação primária. Lacunas de produtividade internacionais negar fantasias de convergência entre as economias avançadas e periféricas. Neoliberalismo velhas teorias de inferioridade herdada dos nativos, atraso cultural latino-americano e supremacia do Ocidente. Leva os mitos positivistas da modernização com base na cópia do capitalismo avançado. Rants contra a interferência do Estado, escondendo os seus lucros dos capitalistas e não explicou a continuidade desta intervenção, depois de tantos governos pró-mercado. É absurdo apresentação da informalidade como uma ressurreição da concorrência empresária. Como crença ou neoliberalismo programa de visão de mundo é a ideologia corrente principal das classes dominantes. Não foi internalizada pelos oprimidos. ; Fil: Katz, Claudio Isaac. Consejo Nacional de Investigaciones Científicas y Técnicas; Argentina
This paper is going to discuss, what will be called, 'The Internet of Bodies'. Our physical and virtual worlds are blending and shifting our understanding of three key areas: (1) our identities are diversifying, as they become hyper-enhanced and multi-sensory; (2) our collaborations are co-created, immersive and connected; (3) our innovations are diverse and inclusive. It is proposed that our bodies have finally become the interface. This gives rise to salient research questions that will be addressed in this paper: - How do virtual forms of the body, created and transmitted through digital tools, change our relationship to ourselves and to others? - How does virtual/physical distributed embodiment redefine identity in socio-political terms? - Can working and living in virtual space enable and encourage collective intelligence, collaboration and co-creation? The last and key question looks to future insights : - How and with what effect will these collective virtual interactions be re-physicalised into the "real" world? The Internet of Bodies is Boddington's 4 year real-time and practise-led research programme (2016-2020) exploring the body's integration with digital technologies and its effect on human identity. Boddington disseminates this new knowledge to a diverse range of outlets (academic, creative industries, arts, educational, corporate) with a large audience reach in UK and internationally. This paper outlines insights gained from the outcomes this dissemination through her curatorial and practise-led research work, as well as post presentation debates from her presentations. It has been written in expansion and following keynotes presentations at University of Cambridge, UKRI Beyond Conference, Women in Games European Conference, Manchester Science Festival, Mobile World Congress and FutureFest amongst others. Boddington specialises in the future human, body responsive technologies and immersive experiences. She is Co-founder and Creative Director of body>data>space (fka shinaknsen), a pioneering interactive creative design collective who have advocated for the living body to be at the heart of the digital debate since the early 1990s. With a background in dance and performing arts and a long-term focus on the blending of our virtual and physical bodies, she engages in highly topical and future digital issues for our living bodies, including personal data usage, identity and representation of the self, connected body enhancements and collective connectivities of the future. One of the most exciting and yet also the most challenging debates of our times is that of the integration of automata, machine learning and AI into our daily existences. Boddington is a long term practise-led researcher and concept developer and well recognised for her pioneer work on virtual physical blending, body connectivity, virtual presence, redfinitions of liveness and the hyper-enhanced sensory self. Feeding from her practise Boddington presents and extends her original ideas into the public realm, for debate and evolution, to enable access by creative industries, education and cultural experts to the imperative questions about our identity, our self-hood and our agency in the future, as we move through considerable issues on data ethics and personal / bio-signal data which, in many cases, no longer belongs to us. 'The Internet of Bodies' has enabled Boddington research to become highly noticeable in a widening circuit, with challenging debates following her topical presentations, where industry and government are questioned on the owneership of our persoanl data. These have fed into Boddington's ever expanding research materials. This journal paper puts forward Boddington's ongoing reflections to these discussions. In 2017, Ghislaine was awarded the IX Immersion Experience Visionary Pioneer Award by Society for Arts and Technology (SAT) for her long-term innovative work in digital arts, and in particular her "passionate and inspirational engagement towards embodied intelligence". Boddington has been invited to present to a wide range of audiences in academia, creative industries and corporate contexts in the UK and internrationally 2016-2019. These range from small expert groupsings of 60 to huge corporate keynotes for up to 2k attendees:- 2019 - Keynote – 'The Internet of Bodies – body data and ethics' at UK Research and Innovation's Industrial Strategy conference 'BEYOND – AI and Creativity', Edinburgh, UK - Keynote – 'The Internet of Bodies – alive, collective and connected' at Women in Games European Conference, London, UK - Keynote Speaker – 'Internet of Bodies: Exploring the Future Human and Collective Engagement Scenarios' for 'Tacit Engagement in the Digital Age' Conference, University of Cambridge, UK - Keynote – 'Internet of Bodies – alive, connected and collective' for the House of Beautiful Business, Academy of Science, Lisbon, Portugal - Opening Keynote 'The Internet of Bodies – alive, connected and collective' and 'Biohacking on Stage Live Human Chip Implant Show' for Mobile World Congress / 4YFN (4 Years From Now), Barcelona, Spain 2018 - Keynote – 'Internet of Bodies – alive, connected and collective' for the House of Beautiful Business, Academy of Science, Lisbon, Portugal - Presentation and curation – 'Future humans: Augmented selves' and 'AI and Creativity Futures' for Nesta's FutureFest, London, UK - Presentation – Live Human Chip Implant Show 'You have been upgraded' for Manchester Science Festival, UK - Keynote – 'The Internet of Bodies' for the Simulation Training for Resilience & Safety Symposium, London, UK 2017 - Opening Keynote – 'The Internet on Bodies – alive, connected and collective' for Internet Mobile World, Bucharest, Romania - Keynote – 'Internet of Bodies – alive, connected and collective' for Manchester Science Festival, UK - Opening Keynote – 'Internet of Bodies' for IX Immersion Experience Symposium for SAT Dome, Montreal, Quebec - Presentation – 'Internet of Bodies – alive, connected and collective' for Thinking Digital, Newcastle, UK 2016 - Keynote Speaker and curation – 'Live Human Chip Implant Show' for Nesta's FutureFest, London, UK - Presentation – 'Women in Tech' for Telefonica Digital Futures, London, UK - Presentation – 'The Internet of Bodies – connected and collective' for Develop:Evolve VR conference, Brighton, UK - Keynote – 'The Internet of Bodies" for Market Research Council Conference, London, UK - Keynote - 'The Internet of Bodies' for HCC12 Conference, University of Salford Additonally Boddington has proposed and debated her insights on the Internet of Bodies into panels and in group discussions at Milano Digital Week, for Nesta Italia; Future Life, Utrecht; General Assembly London; V&A London; Imperial College London; London Tech Week; IX Immersion Experience SAT Montreal; King's College London; British Council; Toyota Europe; Market Research Society UK; Middlesex Univeristy, London; Convergence Festival London; Stylus London; Mapping Festival Geneva; FutureLab London; TEDx's Limassol and Vienna; Media Trendy Warsaw; BFI Sci-Fi Fest; ISEA; Crafts Council; Digital Catapult London Please see links below to a range of evidence for these presentations.
In her pathbreaking book Designing Disability: Symbols, Space and Society, Elizabeth Guffey provides vital insights into decades of social and design processes that ultimately produced the most ubiquitous symbol of disability—and accessibility—worldwide: The International Symbol of Access (ISA). Building on existing scholarship from a range of disciplines coupled with original historical research, this book uncovers the origins and evolving (largely transatlantic) architectural and design discourse, and several moments of serendipity, that led to its creation. The ISA has since diffused to become part of the built environment in all corners of the world. Richly illustrated and charting at times vitriolic debates, protest activities, and artistic interventions up to the contemporary era, Guffey weaves together activist and aesthetic perspectives into a tapestry of social and design history relating to disability and accessibility. Structured in historical phases, the book's chapters progress across larger and shorter stretches over more than a century of wheelchair design, social and welfare policies and programs (mostly in the US, UK, and Scandinavia), architectural standards, and symbols relating to barriers and accessibility measures. Guffey engages the reader in what is necessarily a multidisciplinary, multilevel investigation, with unexpected twists and turns. On one level, the book focuses on the politics of highest office, with US Presidents Franklin D. Roosevelt and Dwight D. Eisenhower (who permanently or temporarily used wheelchairs) sketched against the backdrop of the lack of accessible government buildings in Washington, DC, and the social consensus then to hide impairment for fear of stigmatization (shifted marginally by disabled Veterans). On another level, welfare state provisions in the US, UK, and Scandinavia are discussed in light of progressive legislation and the persistent challenges of implementation. Finally, at ground level, the utmost significance of individuals devoted to universal design writ large becomes manifestly evident. Guffey recounts how, in US universities, inspirational figures such as Timothy Nugent (at Illinois), Ron Mace (at North Carolina State), and Viktor Papanek (at Purdue, CalArts, Kansas, etc.), campus planners, and students designed and constructed new worlds on the drawing board and poured in concrete. We follow design professionals, such as architect Selwyn Goldsmith in the UK, who was a strident arbiter of accessibility. Academic initiatives went hand-in-fist with advocacy activities in organizations and protest and artistic actions in the streets. Indeed, to raise general awareness of the ever-present attitudinal and structural barriers—institutionalized discrimination—that disabled people face daily and to secure disability rights, disability protests and cross-national organizing have repeatedly been necessary. The long and bumpy road to universal design extends into the future. Integral to this history of design development, revision, and critiques of various symbols of disability have been international events (world expositions, Olympics & Paralympics) and organizations (Rehabilitation International), artistic inspiration, design competitions, and guerilla art interventions. Tracing the convoluted process of designing what would become the ISA—fifty years ago now—leads to Susanne Koefoed, a Danish design student, and Karl Montan, leader of the Swedish Institute for the Handicapped, but also to international negotiations and chance. The on-going questioning of the official ISA, especially, its "misfit" nature as an amalgam of technical aid and person, emphasizes the shift from invisibility to ubiquity of disability via social change and political activism as well as cultural representations and the need for signs of identity. In the new century, newer initiatives in the US, such as Brendan Murphy's and the Accessible Icon Project (developed by Sara Hendren and Brian Glenney), have challenged the official ISA, revealing both persistence and change in understandings of disability and accessibility. When integrated into signage, the ISA designates accessible spaces and facilities. If the ISA has become present in public buildings and spaces everywhere, cultural notions of disability and access remain understudied across the social sciences, with especially the Global South remaining a blank page. Research is needed to chart the diverse local interpretations that mirror shifts from exclusion to inclusion of disabled people as the human rights revolution witnessed since the end of WWII continues, but also suffers backlash, even in the Global North. Paradoxically, this global icon refers simultaneously to disability, and its ameliorating factor, accessibility. Yet, the ambivalence and debate surrounding the ISA persist, as Guffey emphasizes especially in the later chapters, focusing on proposed alternatives to the existing ISA, codified as it is in law and conforming to the guidelines of the International Organization for Standardization (ISO). Until universal design (and the universalizing social policies likely needed to support it) succeeds in reducing the barriers in environments and in attitudes and in maximizing the usefulness of products and services during the design stage, identity formation processes are among the most positive aspects of the ISA. The icon's influence and implementation extend far beyond marking modifications to the built environment. Whether taken-for-granted, modified or critiqued, the current ISA has spread globally. It can now be found wherever people move in physical space, finding their way. The symbol testifies to the on-going shift from exclusion, along a slow and winding road, to social inclusion and full participation of disabled people. In sum, Guffey brings scholarship on the ISA to the next stage. It complements studies that chart the influence of disabled peoples' organizations and of international organizations as they facilitated remarkable shifts in disability paradigms. Yet institutionalized discrimination abounds, with the ISA marking that accessibility and universal design are far from achieved. If a few imprecisions tarnish the literature list, this historical work reconstructing a largely Western process cannot be faulted for not providing a complete global analysis of ISA implementation and adjustment. In that vein, with contributions from Guffey herself, the current exhibition "Viktor Papanek: The Politics of Design" (Kries, Klein & Clarke, 2018) indeed extends the discussion to the Global South and across further disciplines, rightfully embedding the dialogue about symbols of disability and enhancing access within broader contexts. Footnote: Kries, Matteo, Amelie Klein & Alison J. Clarke (eds.) (2018). Viktor Papanek: The Politics of Design. Weil am Rhein, Germany: Vitra Design Museum. ISBN: 978-3-945852-26-2. The exhibition is currently on view at Germany's Vitra Design Museum (20 September 2018–10 March 2019), then at Barcelona Design Museum (20 October 2019–2 February 2020).
학위논문 (박사) -- 서울대학교 대학원 : 법학전문대학원 법학과, 2020. 8. 전종익. ; 우리나라의 제9차 개정헌법인 현행 헌법으로의 개정이 이루어진 지 만 32년이 지난 지금, 당시 헌법개정을 둘러싼 논의가 어떠한 과정을 통해 이루어지고 그것이 어떻게 지금 우리에게 적용되고 있는 헌법규정들을 낳았는지를 구체적으로 확인하는 일은, 그 해석을 위한 자료를 제공할 수 있을 뿐 아니라 그 양상에 대한 평가를 통해 현행 헌법 그 자체에 대한 평가를 보충할 수 있을 것으로 기대된다. 그리하여 이 연구는 최근까지 나온 사료들을 가급적 망라하여 개별 헌법규정들의 개정논의 과정을 재구성하고 그 부문별 양상을 고찰함으로써 개정의 의미내용에 대한 평가를 시도한다. 새로운 헌법에 대한 필요는 유신헌법에 이어 국민의 의사와 국가권력의 성립·유지가 괴리되어 있었던 1980년 헌정체제의 성격으로부터 제기되었다. 그러나 기존 헌법상의 절차에 따른 개헌은 종전 집권세력과의 공존을 수반하는 것이었기 때문에, 헌법문제의 해결을 위한 대안으로 처음부터 대통령직선제 개헌이라는 방편에 대한 사회적 합의가 이루어지지는 못하였다. 직선제를 향한 요구와 그에 대한 수용으로 그에 대해 여야뿐만 아니라 범사회적인 합의가 이루어지는 것은, 전두환 정권과 그에 대한 저항세력 모두 기본적인 정치체제에 대한 여타의 대안을 각자 제시하고 그 모두를 서로 받아들일 수 없음이 분명해진 뒤에 비로소 가능했다. 여야 정당들과 기타의 사회주체들 모두 개헌시안을 마련함에 있어서 시민사회의 요구를 광범위하게 반영하는 구체적인 구상을 제시하지 못하였고, 그보다는 종전의 구상들을 답습하거나 임시방편적으로 수용하는 경향을 보였다는 점을 확인한다. 이는 양대 정당의 경우 정권의 획득이나 유지가 보다 중요했기 때문이라고 볼 수도 있다. 하지만 보다 근본적인 관점에서 이는 강력한 물리력을 배경으로 정부가 국민의 자유의사에 따른 개헌을 가로막는 한 아무리 구체적으로 개헌구상을 입안하더라도 그것이 현실화할 전망이 없기 떄문이기도 하였다. 연구의 후반부를 이루는 각 헌법 부문별 논의 과정은 1987년 초반부터 야당뿐 아니라 저항세력 전반에까지 수렴된 대통령직선제 개헌이라는 대안이 정부와의 극한대립 끝에 6. 29 선언을 통한 수용으로써 합의로 넘어간 당시의 상황을 반영한다. 헌법의 기본성격, 그리고 헌법을 통해 보호해야 할 영역을 획정하는 것으로서 정치제도 못지않은 중요성을 지니는 전문과 기본권에 대하여는 양대 정당의 의견이 서로 과정과 내용의 면에서 모두 대체로 대등한 수준에서 반영되었다. 특히 전문에 관한 양대 정당의 논의는 양자의 어느 쪽도 정치적 우위를 점하지 못하고 중립적인 타협을 이룬 새 헌법의 성격을 잘 보여준다. 한편 정치제도에 관하여는 국회해산권의 폐지나 국회의 일부 권한에 관하여 치열한 논쟁이 벌어지기도 하였지만, 결국 국회의 국정감사권과 헌법소원제도가 헌법상 규정된 등의 몇몇 성과를 논외로 하면 전반적인 수준에서 국회나 정부의 지위에 대한 변혁이 이루어졌다고 보기는 어려운 것으로 평가된다. 이와 같은 개헌논의의 결과에 대하여는 기성의 양대 정당이 정권획득을 둘러싼 경쟁질서에만 관심을 가졌기 때문에 급속하고 불충분한 타협만이 이루어졌다는 평가도 가능할 것이나 다른 한편 현행 헌법은 이로써 이후의 정권교체에 불구하고 안정성을 확보할 수 있었다. 이는 국민의 선택에 따라 정치적 책임을 지는 집권세력이 국민의 기본권으로부터 통제되는 헌법으로서의 규범력이 강화된 만큼, 종전의 헌정체제들과 달리 현행의 체제에서는 국민의 책임성 또한 강화되었음을 간과해서는 안 될 것이다. ; 32 years have passed since the 9th revision to the current Constitution in 1987. The author deems the time ripe enough to say that now we give a careful look into how this Constitution was deliberated in what process, and how it led to the provisions that apply to our lives today. Hopefully it can provide new grounds for interpretation thereof, as well as tools to supplement previous evaluations on the Constitution at large, with retrospect to the general trends of the discussion. As no small amount of historical records have been disclosed recently, this study attempts to make as extensive use of them as available, so to reconstruct the discussions pertaining to each provisions amended, and to set forth a reevaluation of the implications to the revision itself, based on contemplations on the tendencies of discussions on each constitutional sphere. A successor to the Yushin system, the 1980 constitutional system formulated and buttressed the Chun Doo Hwan regime which was divored from the will and support of the people, and that was the main source of the necessity to found a new constitutional regime. However, in which way to achieve this was the question unsolved up to 1986. A revision following the existing constitutional procedures leaving the current ruling clique intact was not readily accepted by the resisting social groups as an alternative, whether or not it provided for direct presidential election. It was acknowledged as the only choice only after both the Chun regime and resisting groups had exhausted all other alternatives and it became mutually clear that neither of them could accept any other option. In the course of the struggle before constitutional revision with direct election was mutually accepted, the dynamics among and inside each of the major political actors including the leading parties and other social movements show that they had failed to incorporate the various social needs into their designs, and rather chose to follow previous lines or adopt a new one only as an expedient measure. It should be admitted that, at least for the political parties, taking or retaining power was the primary issue at hand. But we would also have to admit that as long as the strong military government denied the possibility of constitutional change based on the will of people, the more 'realistic' vision that a constitutional plan could give was a prospect of political change, which could only then realize other more pluralistic needs. After the June Uprisings had exhausted all other alternatives for Chun regime, time left for deliberation on the content of Constitution was no longer than a month and a half. A detailed retrospect and a phased-in induction on the tendency shows that the negotiation, in its process and content as well, was tailored to make a roughly equal balance between the two major participants. The pattern of constitutional provisions largely attests to this. The preamble, initially a symbolic battlefield of political powers, was diluted to signify more neutral values. Discussion on fundamental rights was, with a few exceptions where major political interests were involved, a relatively smooth interchange of mutual suggestions, which led to an accommodation at least to the most urgent needs raised in the Chun regime. As for political institutions, the most urgent questions were tacitly solved as the plans of both parties accorded to each other. Thus relatively residual needs were answered in the course of negotiation, which led to a few institutional progress including parliamentary power to inspect the government and the newly devised jurisdiction for constitutional complaint. But aside from those, neither legislative or administrative power can be said to have been subject to thorough change. Some might, with good reason, conclude from the results of the negotiation that the existing major parties were concerned only for their upcoming struggle for power and thus made haste for an insufficient outcome. But on the other side, this course of revision led the Constitution to become stable in spite of periodic interchange of power between the political factions. This enabled people to compare the performances between the factions under largely static insitutional settings, and then choose between them to hold the worse one politically responsible. Unlike previous constitutional regimes, this feature enhanced the actual normativity of the Constitution. ; 제1장 서 론 1 제1절 연구의 필요성과 목적 1 제2절 연구의 방법과 범위 5 제2장 1987년 헌법개정의 정치적 과정 10 제1절 1980년 헌정체제의 성립과 초기 운영 10 1. 1980년 헌법의 개정과정과 내용 10 2. 헌정체제의 구체적 형성과 초기 운영 18 3. 1980년 헌정체제의 성격에 대한 평가 28 제2절 헌법개정 방향에 관한 여야 대립 31 1. 위성정당 체제의 붕괴 31 2. 정부·여당의 개헌노선 수정 40 3. 1986년 개헌논의 정국에서의 여야 대립 59 4. 1986년 말까지의 개헌논의 과정에 대한 평가 71 제3절 1987년 합의개헌으로의 이행 74 1. 박종철 고문치사 사건과 대치국면의 전환 74 2. 개헌논의 국면으로의 이행 77 3. 8인 정치회담 81 4. 1987년 개헌논의 과정에 대한 평가 92 제4절 소 결 95 제3장 헌법개정 시안의 변천과 성격 98 제1절 서설 및 관련 사료 98 제2절 민정당 개헌시안의 형성과 변천 102 1. 1986년의 민정당 개헌시안 형성 102 2. 1987년 민정당 개헌시안으로의 변천 120 3. 민정당 시안에 대한 평가 125 제3절 신한민주당·통일민주당 개헌시안의 형성과 변천 127 1. 제1야당 개헌구상의 효시인 '헌법개정대강' 127 2. 1980년 신민당 개헌시안 130 3. 1985년 신한민주당 시안 139 4. 1986년 신한민주당 시안 144 5. 통일민주당 시안으로의 변천 145 6. 제1야당 개헌시안들에 관한 평가 148 제4절 재야 사회단체 등의 시안 기타 개헌구상 150 1. 대한변호사협회 시안 151 2. 한국노동조합총연맹의 개헌요구 10개항 154 3. 민주헌법쟁취국민운동본부의 헌법개정요강 158 4. 한국여성단체연합의 '민주헌법에 대한 견해' 162 5. 헌법·행정법 교수단체의 의견 164 제5절 소 결 167 제4장 헌법 총론 및 기본권·경제제도 규정의 개정과정 171 제1절 헌법 전문·총강의 개정 171 1. 전문의 개정 171 2. 총강의 개정 189 3. 전문·총강의 개정에 대한 평가 191 제2절 기본권 및 경제질서 규정의 개정 193 1. 기본권 규정의 개정 193 2. 경제질서에 관한 규정의 개정 246 3. 기본권 및 경제관련 규정의 개정에 대한 평가 273 제3절 소 결 275 제5장 헌법상 정치제도 규정의 개정 278 제1절 국회와 정부 관련 규정의 개정 278 1. 국회 관련 규정 278 2. 정부 관련 규정 301 제2절 법원과 헌법재판소 관련 규정의 개정 335 1. 법원 관련 규정 335 2. 헌법재판소 관련 규정 342 3. 법원·헌법재판소 관련 규정의 개정에 대한 평가 354 제3절 기타 정치제도 관련 규정 356 1. 국민투표 및 선거관리 356 2. 지방자치단체장의 "선임" 359 3. 헌법개정절차 360 4. 함의에 대한 평가 362 제4절 소 결 364 제6장 결 론 368 참고문헌 373 Abstract 505 ; Doctor
학위논문 (박사) -- 서울대학교 대학원 : 법학전문대학원 법학과, 2020. 8. 전종익. ; 우리나라의 제9차 개정헌법인 현행 헌법으로의 개정이 이루어진 지 만 32년이 지난 지금, 당시 헌법개정을 둘러싼 논의가 어떠한 과정을 통해 이루어지고 그것이 어떻게 지금 우리에게 적용되고 있는 헌법규정들을 낳았는지를 구체적으로 확인하는 일은, 그 해석을 위한 자료를 제공할 수 있을 뿐 아니라 그 양상에 대한 평가를 통해 현행 헌법 그 자체에 대한 평가를 보충할 수 있을 것으로 기대된다. 그리하여 이 연구는 최근까지 나온 사료들을 가급적 망라하여 개별 헌법규정들의 개정논의 과정을 재구성하고 그 부문별 양상을 고찰함으로써 개정의 의미내용에 대한 평가를 시도한다. 새로운 헌법에 대한 필요는 유신헌법에 이어 국민의 의사와 국가권력의 성립·유지가 괴리되어 있었던 1980년 헌정체제의 성격으로부터 제기되었다. 그러나 기존 헌법상의 절차에 따른 개헌은 종전 집권세력과의 공존을 수반하는 것이었기 때문에, 헌법문제의 해결을 위한 대안으로 처음부터 대통령직선제 개헌이라는 방편에 대한 사회적 합의가 이루어지지는 못하였다. 직선제를 향한 요구와 그에 대한 수용으로 그에 대해 여야뿐만 아니라 범사회적인 합의가 이루어지는 것은, 전두환 정권과 그에 대한 저항세력 모두 기본적인 정치체제에 대한 여타의 대안을 각자 제시하고 그 모두를 서로 받아들일 수 없음이 분명해진 뒤에 비로소 가능했다. 여야 정당들과 기타의 사회주체들 모두 개헌시안을 마련함에 있어서 시민사회의 요구를 광범위하게 반영하는 구체적인 구상을 제시하지 못하였고, 그보다는 종전의 구상들을 답습하거나 임시방편적으로 수용하는 경향을 보였다는 점을 확인한다. 이는 양대 정당의 경우 정권의 획득이나 유지가 보다 중요했기 때문이라고 볼 수도 있다. 하지만 보다 근본적인 관점에서 이는 강력한 물리력을 배경으로 정부가 국민의 자유의사에 따른 개헌을 가로막는 한 아무리 구체적으로 개헌구상을 입안하더라도 그것이 현실화할 전망이 없기 떄문이기도 하였다. 연구의 후반부를 이루는 각 헌법 부문별 논의 과정은 1987년 초반부터 야당뿐 아니라 저항세력 전반에까지 수렴된 대통령직선제 개헌이라는 대안이 정부와의 극한대립 끝에 6. 29 선언을 통한 수용으로써 합의로 넘어간 당시의 상황을 반영한다. 헌법의 기본성격, 그리고 헌법을 통해 보호해야 할 영역을 획정하는 것으로서 정치제도 못지않은 중요성을 지니는 전문과 기본권에 대하여는 양대 정당의 의견이 서로 과정과 내용의 면에서 모두 대체로 대등한 수준에서 반영되었다. 특히 전문에 관한 양대 정당의 논의는 양자의 어느 쪽도 정치적 우위를 점하지 못하고 중립적인 타협을 이룬 새 헌법의 성격을 잘 보여준다. 한편 정치제도에 관하여는 국회해산권의 폐지나 국회의 일부 권한에 관하여 치열한 논쟁이 벌어지기도 하였지만, 결국 국회의 국정감사권과 헌법소원제도가 헌법상 규정된 등의 몇몇 성과를 논외로 하면 전반적인 수준에서 국회나 정부의 지위에 대한 변혁이 이루어졌다고 보기는 어려운 것으로 평가된다. 이와 같은 개헌논의의 결과에 대하여는 기성의 양대 정당이 정권획득을 둘러싼 경쟁질서에만 관심을 가졌기 때문에 급속하고 불충분한 타협만이 이루어졌다는 평가도 가능할 것이나 다른 한편 현행 헌법은 이로써 이후의 정권교체에 불구하고 안정성을 확보할 수 있었다. 이는 국민의 선택에 따라 정치적 책임을 지는 집권세력이 국민의 기본권으로부터 통제되는 헌법으로서의 규범력이 강화된 만큼, 종전의 헌정체제들과 달리 현행의 체제에서는 국민의 책임성 또한 강화되었음을 간과해서는 안 될 것이다. ; 32 years have passed since the 9th revision to the current Constitution in 1987. The author deems the time ripe enough to say that now we give a careful look into how this Constitution was deliberated in what process, and how it led to the provisions that apply to our lives today. Hopefully it can provide new grounds for interpretation thereof, as well as tools to supplement previous evaluations on the Constitution at large, with retrospect to the general trends of the discussion. As no small amount of historical records have been disclosed recently, this study attempts to make as extensive use of them as available, so to reconstruct the discussions pertaining to each provisions amended, and to set forth a reevaluation of the implications to the revision itself, based on contemplations on the tendencies of discussions on each constitutional sphere. A successor to the Yushin system, the 1980 constitutional system formulated and buttressed the Chun Doo Hwan regime which was divored from the will and support of the people, and that was the main source of the necessity to found a new constitutional regime. However, in which way to achieve this was the question unsolved up to 1986. A revision following the existing constitutional procedures leaving the current ruling clique intact was not readily accepted by the resisting social groups as an alternative, whether or not it provided for direct presidential election. It was acknowledged as the only choice only after both the Chun regime and resisting groups had exhausted all other alternatives and it became mutually clear that neither of them could accept any other option. In the course of the struggle before constitutional revision with direct election was mutually accepted, the dynamics among and inside each of the major political actors including the leading parties and other social movements show that they had failed to incorporate the various social needs into their designs, and rather chose to follow previous lines or adopt a new one only as an expedient measure. It should be admitted that, at least for the political parties, taking or retaining power was the primary issue at hand. But we would also have to admit that as long as the strong military government denied the possibility of constitutional change based on the will of people, the more 'realistic' vision that a constitutional plan could give was a prospect of political change, which could only then realize other more pluralistic needs. After the June Uprisings had exhausted all other alternatives for Chun regime, time left for deliberation on the content of Constitution was no longer than a month and a half. A detailed retrospect and a phased-in induction on the tendency shows that the negotiation, in its process and content as well, was tailored to make a roughly equal balance between the two major participants. The pattern of constitutional provisions largely attests to this. The preamble, initially a symbolic battlefield of political powers, was diluted to signify more neutral values. Discussion on fundamental rights was, with a few exceptions where major political interests were involved, a relatively smooth interchange of mutual suggestions, which led to an accommodation at least to the most urgent needs raised in the Chun regime. As for political institutions, the most urgent questions were tacitly solved as the plans of both parties accorded to each other. Thus relatively residual needs were answered in the course of negotiation, which led to a few institutional progress including parliamentary power to inspect the government and the newly devised jurisdiction for constitutional complaint. But aside from those, neither legislative or administrative power can be said to have been subject to thorough change. Some might, with good reason, conclude from the results of the negotiation that the existing major parties were concerned only for their upcoming struggle for power and thus made haste for an insufficient outcome. But on the other side, this course of revision led the Constitution to become stable in spite of periodic interchange of power between the political factions. This enabled people to compare the performances between the factions under largely static insitutional settings, and then choose between them to hold the worse one politically responsible. Unlike previous constitutional regimes, this feature enhanced the actual normativity of the Constitution. ; 제1장 서 론 1 제1절 연구의 필요성과 목적 1 제2절 연구의 방법과 범위 5 제2장 1987년 헌법개정의 정치적 과정 10 제1절 1980년 헌정체제의 성립과 초기 운영 10 1. 1980년 헌법의 개정과정과 내용 10 2. 헌정체제의 구체적 형성과 초기 운영 18 3. 1980년 헌정체제의 성격에 대한 평가 28 제2절 헌법개정 방향에 관한 여야 대립 31 1. 위성정당 체제의 붕괴 31 2. 정부·여당의 개헌노선 수정 40 3. 1986년 개헌논의 정국에서의 여야 대립 59 4. 1986년 말까지의 개헌논의 과정에 대한 평가 71 제3절 1987년 합의개헌으로의 이행 74 1. 박종철 고문치사 사건과 대치국면의 전환 74 2. 개헌논의 국면으로의 이행 77 3. 8인 정치회담 81 4. 1987년 개헌논의 과정에 대한 평가 92 제4절 소 결 95 제3장 헌법개정 시안의 변천과 성격 98 제1절 서설 및 관련 사료 98 제2절 민정당 개헌시안의 형성과 변천 102 1. 1986년의 민정당 개헌시안 형성 102 2. 1987년 민정당 개헌시안으로의 변천 120 3. 민정당 시안에 대한 평가 125 제3절 신한민주당·통일민주당 개헌시안의 형성과 변천 127 1. 제1야당 개헌구상의 효시인 '헌법개정대강' 127 2. 1980년 신민당 개헌시안 130 3. 1985년 신한민주당 시안 139 4. 1986년 신한민주당 시안 144 5. 통일민주당 시안으로의 변천 145 6. 제1야당 개헌시안들에 관한 평가 148 제4절 재야 사회단체 등의 시안 기타 개헌구상 150 1. 대한변호사협회 시안 151 2. 한국노동조합총연맹의 개헌요구 10개항 154 3. 민주헌법쟁취국민운동본부의 헌법개정요강 158 4. 한국여성단체연합의 '민주헌법에 대한 견해' 162 5. 헌법·행정법 교수단체의 의견 164 제5절 소 결 167 제4장 헌법 총론 및 기본권·경제제도 규정의 개정과정 171 제1절 헌법 전문·총강의 개정 171 1. 전문의 개정 171 2. 총강의 개정 189 3. 전문·총강의 개정에 대한 평가 191 제2절 기본권 및 경제질서 규정의 개정 193 1. 기본권 규정의 개정 193 2. 경제질서에 관한 규정의 개정 246 3. 기본권 및 경제관련 규정의 개정에 대한 평가 273 제3절 소 결 275 제5장 헌법상 정치제도 규정의 개정 278 제1절 국회와 정부 관련 규정의 개정 278 1. 국회 관련 규정 278 2. 정부 관련 규정 301 제2절 법원과 헌법재판소 관련 규정의 개정 335 1. 법원 관련 규정 335 2. 헌법재판소 관련 규정 342 3. 법원·헌법재판소 관련 규정의 개정에 대한 평가 354 제3절 기타 정치제도 관련 규정 356 1. 국민투표 및 선거관리 356 2. 지방자치단체장의 "선임" 359 3. 헌법개정절차 360 4. 함의에 대한 평가 362 제4절 소 결 364 제6장 결 론 368 참고문헌 373 Abstract 505 ; Doctor
El Nuevo Ferrocarril de Antioquia, que contempla una vía ferroviaria entre La Felisa y Urabá (433 km) y la rehabilitación del Ferrocarril Amagá – Medellín – Puerto Berrío (295 km), cuyo principal beneficio es la conformación de un Corredor Logístico N-S, al expandir el Corredor Férreo del río Cauca para conectar los dos mares de Colombia
The article deals with the potential of financial security, which forms the system of financial protection of vital interests of subjects of agricultural business. It is proved that under the pressure of the external environment, leverage and financial mechanism tools that trigger the potential of financial security of agriculture can change, risk manifestation and economic depression of enterprises continue or stop. The importance of forming the aggregate value of the potential of financial security in the region is due to its component, which is capable of performing actions to mobilize the real and hidden possibilities of financial resources in a limited time period, to overcome the threats to a safe environment for the functioning of subjects of agricultural business. The priority of financial support of agriculture of Ukraine according to indicators of intensity and efficiency of use of financial resources is singled out. A differentiated approach to the clustering of the k-medium method – indicators of the use of financial resources as interdependence of the factors of the formation of the aggregate magnitude of the potential of financial security of subjects of agricultural business of Ukraine was used. With the help of inductive system analysis, a model of a stable level of potential of financial security capacity based on net profit has been developed. The model is adequate, its statistical quality, significance and reliability are sufficient for forming the forecast level of potential of financial security of subjects of agricultural business of the region. The developed methodology is based on the components of the protection of financial system of economic entities in the conditions of the restrictions of the choice of alternative sources of formation and distribution of financial resources, as well as the likelihood of their use. Key words: potential, financial security, financial resources, financial support, agricultural finance, agrarian enterprises. REFERENCES1. Baranovskij O. I. (2004) Finansova bezpeka v Ukrayini - metodologiya ocinki ta mehanizmi zabezpechennya [Financial Security in Ukraine - Methodology of Valuation and Mechanisms]. Kiїv.2. Gerasimenko N.A., Zhejmonda O.V. (2009) Riziki v silskomu gospodarstvi z urahuvannyam regionalnogo aspektu [Risks in agriculture taking into account the regional aspect]. APK economy, (9), 62-65.3. Grivkivska O.V. (2010) Teoretichni pidhodi do viznachennya finansovoyi bezpe-ki silskogo gospodarstva [Theoretical approaches to determining the financial security of agriculture]. Forming Market Relations in Ukraine, (4(107)), 160-162.4. Grivkivska O.V. (2011) Finansova bezpeka silskogo gospodarstva regioniv Ukrayini [Financial security of agriculture in the regions of Ukraine]. Finance of Ukraine, (7), 93-103.5. 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(2010) Upravlinnya finansovoyu bezpekoyu pidpriyemstva: metodichnij aspekt [Management of financial security of the enterprise: methodical aspect] Visnik ekonomiki transportu i promislovosti, (29), 119–124.10. Nacionalnij bank Ukrayini. (2019) [National Bank of Ukraine. Official website]. Retrived from http://www.bank.gov.ua/11. Kizim M.O., Zabrodskij V.A., Zinchenko V.A., Kopchak Yu.S. (2003) Ocinka i diagnostika finansovoyi stijkosti pidpriyemstva: monografiya [Assessment and diagnostics of financial stability of the enterprise: monograph]. Kharkiv: Inzhek.12. Prokopenko N.S., Lemishko O.O. (2009) Finansova i podatkova bezpeka pidpriyemstv agrarnogo sektora [Financial and tax security of agricultural enterprises]. AgroSvit, (18), 16–19.13. Statistichnij zbirnik «Silske gospodarstvo Ukrayini» za 2017 rik (2018) [Statistical collection "Agriculture of Ukraine" for 2017]. Kyiv: State Statistics Service of Ukraine.14. Statistichnij zbirnik «Silske gospodarstvo Ukrayini» za 2018 rik (2019) [Statistical collection "Agriculture of Ukraine" for 2018]. Kyiv: State Statistics Service of Ukraine.15. Bazarov G.Z., Belyaev S.G., Belyh L.P. i dr (1996) Teoriya i praktika antikrizisnogo upravleniya [The theory and practice of crisis management]. Moscow: Law and Law, UNITI.16. Trusova N.V. (2015) Destabilizacijni procesi v sistemi zabezpechennya finansovogo potencialu silskogospodarskih pidpriyemstv [Trusova NV Destabilization processes in the system of ensuring the financial potential of agricultural enterprises]. Hlobalʹni ta natsionalʹni problemy ekonomiky, (2) Retrived from URL: http://www.global-national.in.ua.17. Davidenko N.M. (2017) Finansove zabezpechennya agrarnogo sektora: vitchiznyanij ta zarubizhnij dosvid [Financial support of the agricultural sector:domestic and foreign experience]. Kyiv: NUBiP Ukraine.18. Frunza S. A. (2010) Zabezpechennya investicijnogo rozvitku agrarnoyi sferi nacionalnoyi ekonomiki [Provision of investment development of agrarian sphere of national economy]. Naukovi pratsi KTEU. Ekonomichni nauky, (17), 1-7.19. Cibok V. O. (2005) Byudzhetna pidtrimka rozvitku APK z vikoristannyam me-hanizmu zdeshevlennya kreditiv [Budget support for the development of agroindustrial complex with the use of the mechanism of cheaper loans]. Naukovi pratsi NDFI, (3(32), 64-70.20. Coleman W., Skogstad G., Atkinson M. (1996) Paradigm Shifts and Policy Networks: Cumulative Change in Agriculture. Journal of Public Policy, (16), 273–301.21. Forgue B. (1996) Novellas approaches de la question des crises. Rev fantasize de question. Paris, (108), 72–73.22. Ling C.-H., Yang H.-L., Liou D.-Y. (2009) The impact of corporate social responsibility on financial performance: Evidence from business in Taiwan. (31(1)), 56-63.23. Moyer W., Josling T. (2002) Agricultural Policy Reform. Politics and process in the EU and US in 1990 s. Alders hot, 79-80.24. Petrick M. (2005) Empirical measurement of credit rationing in agriculture: a methodological survey, IAMO Retrived from http://econpapers.repec.org/paper/zbwiamodp/14926.htm. ; В статье рассматривается потенциал финансовой безопасности, который формирует систему финансовой защиты жизненно важных интересов субъектов аграрного бизнеса. Реализуется, что под давлением внешней среды могут измениться рычаги и инструменты финансового механизма, которые запускают потенциал финансовой безопасности сельского хозяйства, могут продолжаться или прекращаться проявления риска и экономическая депрессия предприятий. Важность формирования общей ценностипотенциала финансовой безопасности в регионе обусловлена его компонентом, который способен выполнять действия по мобилизации реального и скрытого потенциала финансовых ресурсов за ограниченный период времени, чтобы Преодолеть угрозы для безопасной среды функционирования субъектов агробизнеса. Выделен приоритет финансовой поддержки сельского хозяйства Украины по показателям интенсивности и эффективности использования финансовых ресурсов. Использован дифференцированный подход к кластеризации метода k-medium - показателей использования финансовых ресурсов как взаимозависимости факторов формирования совокупной величины потенциала финансовой безопасности субъектов аграрного бизнеса Украины. С помощью индуктивного системного анализа была разработана модель стабильного уровня потенциальных возможностей финансового обеспечения на основе чистой прибыли. Модель является адекватной, ее статистическое качество, значимость и надежность достаточны для формирования прогнозного уровня потенциальной финансовой безопасности сельскохозяйственных предприятий в регионе. Разработанная методология основана на компонентах защиты финансовой системы хозяйствующих субъектов в условиях ограничений выбора альтернативных источников формирования и распределения финансовых ресурсов, а также вероятности их использования. Ключевые слова: потенциал, финансовая безопасность, финансовые ресурсы, финансовая поддержка, сельскохозяйственное финансирование, аграрные предприятия. Список использованной литературы1. Барановський О.І. Фінансова безпека в Україні - методологія оцінки та механізми забезпечення: монографія. Київ: Київ. нац. торг.- екон. ун-т, 2004. 759 с.2. Герасименко Н.А., Жеймонда О.В. Ризики в сільському господарстві з урахуванням регіонального аспекту. Економіка АПК. 2009. №9. С. 62–65.3. Гривківська О.В. Теоретичні підходи до визначення фінансової безпеки сільського господарства. Формування ринкових відносин в Україні: зб. наук. праць / наук. ред. І. Г. Манцуров. Київ, 2010. Вип. № 4(107). С. 160–162.4. Гривківська О.В. Фінансова безпека сільського господарства регіонів України. Фінанси України. 2011. № 7. С. 93–103.5. Державна служба статистики України. URL: http://www.ukrstat.gov.ua. (дата звернення: 22.05.2019).6. Жидяк О.Р. Проблеми вдосконалення механізму фінансування підприємницьких структур аграрної сфери. Бізнес інформ. 2013. №2. С. 139–141.7. Єрмошенко М.М. Фінансова безпека держави: національні інтереси, реальні загрози, стратегія забезпечення. Київ: Київ. нац. орг.-екон.ун-т, 2001. 309 с.8. Корнєєв В. Антикризові інструменти фінансової стабілізації. Економіка України. 2009. №12. С. 22–34.9. Кузенко Т.Б., Сабліна Н.В., Литовченко О.Ю. Управління фінансовою безпекою підприємства: методичний аспект. Вісник економіки транспорту і промисловості. 2010. № 29. С. 119–124.10. Національний банк України. Офіційне Інтернет-представництво. URL: http://www.bank.gov.ua/ (дата звернення: 11.07.2019).11. Кизим М.О., Забродський В.А., Зінченко В.А., Копчак Ю.С. Оцінка і діагностика фінансової стійкості підприємства: монографія. Харків: ВД «Інжек». 2003. 144 с.12. Прокопенко Н.С., Лемішко О.О. Фінансова і податкова безпека підприємств аграрного сектора. АгроСвіт. 2009. № 18. С. 16–19.13. Статистичний збірник «Сільське господарство України» за 2017 рік. Київ: Державна служба статистики України, 2018.14. Статистичний збірник «Сільське господарство України» за 2018 рік. Київ: Державна служба статистики України, 2019.15. Базаров Г.З., Беляев С.Г., Белых Л.П. Теория и практика антикризисного управления. Москва: Закон и право, ЮНИТИ, 1996. 469 с.16. Трусова Н.В. Дестабілізаційні процеси в системі забезпечення фінансового потенціалу сільськогосподарських підприємств. Глобальні та національні проблеми економіки. 2015. Вип. 2. URL: http://www.global-national.in.ua.17. Фінансове забезпечення аграрного сектора: вітчизняний та зарубіжний досвід: монографія / за ред. Давиденко Н.М. Київ: НУБіП України, 2017. 454 с.18. Фрунза С. А. Забезпечення інвестиційного розвитку аграрної сфери національної економіки. Наукові праці КТЕУ. Економічні науки. 2010. № 17. С. 1–7.19. Цибок В. О. Бюджетна підтримка розвитку АПК з використанням механізму здешевлення кредитів. Наукові праці НДФІ. 2005. №3(32). С. 64–70.20. Coleman W., Skogstad G., Atkinson M. Paradigm Shifts and Policy Networks: Cumulative Change in Agriculture. Journal of Public Policy. 1996. Vol. 16. Р. 273–301.21.Forgue B. Novellas approaches de la question des crises. Rev fantasize de question. Paris. 1996. № 108. Р. 72–73.22. Ling C.-H., Yang H.-L., Liou D.-Y. The impact of corporate social responsibility on financial performance: Evidence from business in Taiwan. 2009. Vol. 31. №1. Р.56-63.23. Moyer W., Josling T. Agricultural Policy Reform. Politics and process in the EU and US in 1990 s. Alders hot. 2002. Р.79-80.24. Petrick M. Empirical measurement of credit rationing in agriculture: a methodological survey, IAMO URL: http://econpapers.repec.org/paper/zbwiamodp/14926.htm. ; В статті розглянуто потенціал фінансової безпеки, який формує систему фінансового захисту життєво необхідних інтересів суб'єктів аграрного бізнесу. Доведено важливість формування сукупної величини потенціалу фінансової безпеки, яка здатна мобілізувати реальні та приховані можливості фінансових ресурсів в обмеженому часовому періоді, для подолання невизначеності функціонування суб'єктів аграрного бізнесу. Виокремлено індикатори інтенсивності та ефективності використання фінансових ресурсів. За допомогою індикативного системного аналізу розроблено модель стабільного рівня потенціалу фінансової безпеки за чистим прибутком. Модель є адекватною та дозволяє в умовах обмеженості вибору джерел формування та розподілу фінансових ресурсів визначити ймовірність процесу використання потенціалу фінансової безпеки суб'єктів аграрного бізнесу на регіональному рівні. Ключові слова: потенціал, фінансова безпека, фінансові ресурси, фінансове забезпечення, сільське господарство, аграрні підприємства. Список використаної літератури1. Барановський О.І. Фінансова безпека в Україні - методологія оцінки та механізми забезпечення: монографія. Київ: Київ. нац. торг.- екон. ун-т, 2004. 759 с.2. Герасименко Н.А., Жеймонда О.В. Ризики в сільському господарстві з урахуванням регіонального аспекту. Економіка АПК. 2009. №9. С. 62–65.3. Гривківська О.В. Теоретичні підходи до визначення фінансової безпеки сільського господарства. Формування ринкових відносин в Україні: зб. наук. праць / наук. ред. І. Г. Манцуров. Київ, 2010. Вип. № 4(107). С. 160–162.4. Гривківська О.В. Фінансова безпека сільського господарства регіонів України. Фінанси України. 2011. № 7. С. 93–103.5. Державна служба статистики України. URL: http://www.ukrstat.gov.ua. (дата звернення: 22.05.2019).6. Жидяк О.Р. Проблеми вдосконалення механізму фінансування підприємницьких структур аграрної сфери. Бізнес інформ. 2013. №2. С. 139–141.7. Єрмошенко М.М. Фінансова безпека держави: національні інтереси, реальні загрози, стратегія забезпечення. Київ: Київ. нац. орг.-екон.ун-т, 2001. 309 с.8. Корнєєв В. Антикризові інструменти фінансової стабілізації. Економіка України. 2009. №12. С. 22–34.9. Кузенко Т.Б., Сабліна Н.В., Литовченко О.Ю. Управління фінансовою безпекою підприємства: методичний аспект. Вісник економіки транспорту і промисловості. 2010. № 29. С. 119–124.10. Національний банк України. Офіційне Інтернет-представництво. URL: http://www.bank.gov.ua/ (дата звернення: 11.07.2019).11. Кизим М.О., Забродський В.А., Зінченко В.А., Копчак Ю.С. Оцінка і діагностика фінансової стійкості підприємства: монографія. Харків: ВД «Інжек». 2003. 144 с.12. Прокопенко Н.С., Лемішко О.О. Фінансова і податкова безпека підприємств аграрного сектора. АгроСвіт. 2009. № 18. С. 16–19.13. Статистичний збірник «Сільське господарство України» за 2017 рік. Київ: Державна служба статистики України, 2018.14. Статистичний збірник «Сільське господарство України» за 2018 рік. Київ: Державна служба статистики України, 2019.15. Базаров Г.З., Беляев С.Г., Белых Л.П. Теория и практика антикризисного управления. Москва: Закон и право, ЮНИТИ, 1996. 469 с.16. Трусова Н.В. Дестабілізаційні процеси в системі забезпечення фінансового потенціалу сільськогосподарських підприємств. Глобальні та національні проблеми економіки. 2015. Вип. 2. URL: http://www.global-national.in.ua.17. Фінансове забезпечення аграрного сектора: вітчизняний та зарубіжний досвід: монографія / за ред. Давиденко Н.М. Київ: НУБіП України, 2017. 454 с.18. Фрунза С. А. Забезпечення інвестиційного розвитку аграрної сфери національної економіки. Наукові праці КТЕУ. Економічні науки. 2010. № 17. С. 1–7.19. Цибок В. О. Бюджетна підтримка розвитку АПК з використанням механізму здешевлення кредитів. Наукові праці НДФІ. 2005. №3(32). С. 64–70.20. Coleman W., Skogstad G., Atkinson M. Paradigm Shifts and Policy Networks: Cumulative Change in Agriculture. Journal of Public Policy. 1996. Vol. 16. Р. 273–301.21.Forgue B. Novellas approaches de la question des crises. Rev fantasize de question. Paris. 1996. № 108. Р. 72–73.22. Ling C.-H., Yang H.-L., Liou D.-Y. The impact of corporate social responsibility on financial performance: Evidence from business in Taiwan. 2009. Vol. 31. №1. Р.56-63.23. Moyer W., Josling T. Agricultural Policy Reform. Politics and process in the EU and US in 1990 s. Alders hot. 2002. Р.79-80.24. Petrick M. Empirical measurement of credit rationing in agriculture: a methodological survey, IAMO URL: http://econpapers.repec.org/paper/zbwiamodp/14926.htm.
Article by Morris Arnold on the Arkansas Legal System during the Colonial Period. ; THE ARKANSAS COLONIAL LEGAL SYSTEM, 1686-1766 Morris S. Arnold* Except for the silence of its final letter, there is nowadays nothing very French about Arkansas. Yet before the American takeover in 1804 the great majority of the European inhabitants of the area presently occupied by the state were of French origin. There is s9me visible proof of this in the names, many now mangled beyond e:asy recognition, which eighteenth-century voyageurs and coureurs de bois gave to a good many Arkansas places and streams; 1 and there are, as well, a number of Arkansas townships which bear the names of their early French habitants .2 While these faint traces of a remote European past survive, absolutely nothing remains of the laws and customs which the ancient residents of Arkansas observed. This is no accident. It was a favorite object of Jefferson to introduce the common law of England into the vast Louisiana Territory as quickly as he could. In the lower territory he waited too late. New Orleans had had a large French population and a somewhat professionalized legal system for some time, and the civilian opposition, given time to congeal, proved to * Ben J. Altheimer Distinguished Professor of Law, University of Arkansas at Little Rock. B.S.E.E. 1965, LL.B. 1968, University of Arkansas; LL.M. 1969, S.J.D. 1971, Harvard Law School. This article is the first chapter of Professor Arnold's book, UNEQUAL LAWS UNTO A SAVAGE RACE: EUROPEAN LEGAL TRADITIONS IN ARKANSAS, 1686-1836, which will be published later this year. l. See generally Branner, Some Old French Place Names in the State of Arkansas, 19 ARK. HIST. Q. 191 (1960). The etymology of some of these names is difficult and interesting. Who would guess very quickly, for instance, that Smackover in Union County is Chemin Couvert (covered road) in disguise? Id. at 206. Tchemanihaut Creek (pronounced 'Shamanahaw") in Ashley County is a good deal easier: Chemin a haut (high road) must have been its original name. Its initial letter, one local historian has plausibly suggested, is probably attributable to "a misguided attempt to derive the name from the Indian language." Y. ETHERIDGE, HISTORY OF ASHLEY COUNTY, ARKANSAS 17, 18 (1959). Other names should on sight be instantly intelligible to a modern Parisian, though their current pronunciation might cause him consternation: Examples are the Terre Rouge (red earth) and Terre Noire (black earth) Creeks in Clark County, the L 'Angui!le (eel) River in northeast Arkansas, and La Grue (crane) township in Arkansas county. 2. Vaugine and Bogy Townships in Jefferson County, Darysaw (Desruisseaux) Township in Grant County, and Fourche La Fave (Lefevre) Township in Perry County are good examples. 391 392 UALR LAW JOURNAL [Vol. 6:391 have sufficient muscle to win a partial victory.3 As a result, as to substantive civil matters the state of Louisiana is today a thoroughly civilian jurisdiction. In the upper territory, however, by a piecemeal process beginning in 1804, the English common law was insinuated into the legal system, until, in 1816, it was at last adopted virtually wholesale by the General Assembly of the Missouri Territory.4 The purpose of this article is to explain why civilian legal institutions proved so weak in Upper Louisiana and especially in Arkansas. It turns out that the smallness and character of the European population in Arkansas was the main cause for the vulnerability of European legal norms there. The reception of the common law in Arkansas was simply one element in a more general exchange of cultures which occurred following the Louisiana Purchase. I At ten o'clock on the morning of March 12, 1682, Robert Cavalier, sieur de la Salle, having been commissioned four years earlier by Louis XIV of France to explore and take possession of the Mississippi and its tributaries, drew near the Quapaw Village of Kappa. The village was located on the right bank of the Mississippi River about twenty miles north of the mouth of the Arkansas. From the war chants emanating from the Indian town, La Salle judged that he was in for a hostile reception; so he hastily constructed a "fort" on an island opposite the village and awaited developments. Soon, however, the Quapaw chief sent the calumet of peace, and La Salle and his men went to Kappa where they were received with every possible demonstration of affection both public and private. Asked by the Quapaws for help against their enemies, La Salle promised that they could thenceforth look for protection to the greatest prince of the world, in whose behalf he had come to them and to all the other nations who lived along and around the river. In return, La Salle said, the Quapaws had to consent expressly to the erection in their village of a column on which His Majesty's arms were to be painted, symbolizing their recognition that he was the master of their lands. The Indians agreed and Henry de Tonti, La Salle's lieutenant 3. See generally G. DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF LEGAL TRADITIONS (1975). 4. 1 LAWS OF A PUBLIC AND GENERAL NATURE, OF THE DISTRICT OF LOUISIANA, OF THE TERRITORY OF LOUISIANA, OF THE TERRITORY OF MISSOURI, AND OF THE STATE OF MISSOURI, UP TO THE YEAR 1824, ch. 154 (1842). 1983) COLONIAL LEGAL SYSTEM 393 and commandant of one of the two brigades in the company, immediately caused the column to be fashioned. On it was painted a cross and the arms of France, and it bore these words: Louis the Great, King of France and of Navarre, rules. 13th of March, 1682. Tonti then conducted the column with all the French men-at-arms to the plaza of the village, and, La Salle taking up a position at the head of his brigade and Tonti at the head of his, the Reverend Father Zeno be Membre sang the hymn 0 crux, ave, spes unica. The company then went three times around the plaza, each time singing the psalm Exaudiat te Dominus and shouting vive le roy to the discharge of their muskets. They then planted the column while repeating the cries of vive le roy, and La Salle, standing near the column and holding the king's commission in his hand, spoke in a loud voice the following words in French: On behalf of the very high, very invincible, and victorious prince Louis the Great, by the grace of God, King of France and of Navarre, the fourteenth of this name, today, the 13th of March, 1682, with the consent of the nation of the Arkansas assembled at the village of Kappa and present at this place, in the name of the king and his allies, I, by virtue of the commission of His Majesty of which I am bearer and which I hold presently in my hand . , have taken possession in the name of His ffi.ajesty, his heirs, and the successors to his crown, of the country of Louisiana and of all the nations, mines, minerals, ports, harbors, seas, straits, and roadsteads, and of everything contained within the same . . . . After more musket-firing and the giving of presents the Indians celebrated their new alliance throughout the night, pressing their hands to the column and then rubbing their bodies in testimony to the joy which they felt in having made so advantageous a connection. Thus did France gain sovereignty over and ownership of Arkansas. The reason that we know all these details and more about La Salle's activities in Arkansas is that he had requested, and received, from Jacques de la Metairie, the notary who was in his company, a lengthy proces-verbal describing the events at Kappa and officially attesting their occurrence.5 This was Arkansas's first exposure to civilian legal processes. It would be almost 150 years before the influence of the civil law ceased to make itself felt there. 5. 2 P. MARGRY, DECOUVERTES ET ETABLISSEMENT DES FRAN<;:AIS DANS L'0UEST ET DANS LE SUD DE L'AMERIQUE SEPTENTRIONALE, 1614-1754 (1881). 394 UALR LAW JOURNAL [Vol. 6:391 II Arkansas Post was the first European establishment in the lower Mississippi valley. It was first located about twenty-seven miles by river from the mouth of the Arkansas on the edge of Little Prairie at what is now called the Menard Site. (See Figure 2). Settled in 1686 by six tenants of Henry de Tonti to whom La Salle in 1682 had granted the lower Arkansas as a seignory, 6 it was to serve as an Indian trading post and as an intermediate station between the Illinois country and the Gulf of Mexico.7 Tonti's plans for the place had been large indeed. In 1689 he promised the Jesuits to build a house and chapel at the Arkansas and to grant a resident priest a sizeable amount of land; while there, Tonti confidently asserted, the priest could "come and say mass in the French quarter near our fort."8 No priest in fact established himself during Tonti's ownership of the Arkansas and his French quarter and fort never materialized. When in an undated grant of land to Jacques Cardinal, one of his men at the Post, Tonti styled himself seigneur de ville de Tonti (lord of the town of Tonti),9 he was in the grips of an excessive enthusiasm. There is no evidence that the European population of the place ever exceeded six. In fact, when Joutel arrived there in 1687 there were only two Frenchmen remaining in residence; 10 and the single log house he descpbed is apparently the only structure ever erected at Tonti's Post. Joutel remarked of Tonti's two traders that "if I was joyous to find them, they participated in the joy since we left them the wherewithal to maintain themselves for some time." Indeed, he said, "they were almost as much in need of our help as we of theirs." He ridiculed the whole idea of a post at that location. "The said house," Joutel noted sarcastically, "was to serve as an 6. See Faye, The Arkansas Post ef Louisiana: French Domination, ;26 LA. HIST. Q. 633, 635-36 ( 1943). 7. Such was the view of Father Douay, a Jesuit who described Tonti's post in 1687. See M. THOMAS, THE ARKANSAS POST OF LOUISIANA, 1682-1783 (M.A. Thesis, University of California, 1948). 8. Tonti's grant to the Jesuits is quoted in 1 M. GIRAUD, A HISTORY OF FRENCH LOUISIANA 8 (J. Lambert trans., 1974). 9. The grant is translated in THE FRENCH FOUNDATIONS 396 (T. Pease & R. Werner eds., 1934). 10. Faye, supra note 6, at 735. 1983] COLONIAL LEGAL SYSTEM Henry de Tonti, lieutenant of La Salle. He founded Arkansas Post in 1686 and in the late seventeenth century styled himself seigneur de ville de Tonti. He was the first European to possess judicial authority in Arkansas. (Courtesy of the Museum of the History of Mobile). 395 396 UALR LAW JOURNAL · [Vol. 6:391 entrepot [way-station] for the French who travelled in these parts, but we were the only ones whom it so served." 11 Short of supplies and virtually inaccessible, the tiny outpost never prospered. The war with the Iroquois closed the route to Canada and made trade to and from Arkansas impossible much of the time until 1693.12 By 1696, Jean Couture, Tonti's lieutenant and commandant at the Post, had deserted to the English, 13 and in 1699 Jesuit missionaries to the Quapaws found no trace of a French settlement. 14 By then the French had evidently abandoned the Arkansas, though there may have remained behind a "few white savages thereabouts as wild as red savages." 15 However grandiose and ambitious had been the schemes of Tonti, they would soon come to seem tame. In 1717 the Mercure de France, a Paris newspaper, began advertising the riches of Louisiana to its readers: Gold and silver could be mined there "with almost no labor." The mountains situated on the Arkansas River would be explored, and there, one correspondent exuded, "we shall gather, believe me, specimens from silver mines, since others already have gathered such there without trouble." When Cadillac sensibly protested that "the mines of the Arkansas were a dream" he was promptly committed to the Bastille "on suspicion of having spoken with scant propriety against the Government of France."16 The man behind the propaganda campaign was John Law, a Scot, who owned a bank in Paris and who had in 1717 succeeded in securing for his Compagnie d'Occident a monopoly on Louisiana trade. Law's company recruited thousands of colonists to settle in Louisiana and the king granted it authority to grant land from the 11. Joutel Remarques sur /'Ouvrage de Tonti Re/at(( a la Louisiane ( 1703), Archives Service Hydrographique (Paris), vol. 115-9, no. 12 (Typescript in Little Rock Public Library). The translation in the text is mine. 12. Faye, supra note 6, at 638. 13. IBERVILLE'S GULF JouRNALS 144 at n.98 (R. McWilliams ed. 1950). 14. 18 COLLECTIONS OF THE WISCONSIN HISTORICAL SOCIETY 427, at n.37 (1908). 15. Faye, supra note 6, at 646. See also I M. GIRAUD, supra note 8, at 8: "When d'Iberville reached the Mississippi [i.e., in 1699] the post had been abandoned." Some writers are reluctant to say that the Arkansas was completely devoid of Europeans at this time. See, e.g., P. HOLDER, ARCHAEOLOGICAL FIELD RESEARCH ON THE PROBLEM OF THE LOCATIONS OF ARKANSAS POST ARKANSAS 4 (1957): "The French occupation of the general area along the lower courses of the Arkansas and White Rivers was virtually continuous from the 1680's onward." The truth is that the sources simply fail to mention any Europeans in Arkansas, except Jesuit missionaries, between 1699 and 1721. It is, however, hard to resist believing that a few hunters and trappers ventured from time to time into the area and established temporary camps there. Almost certainly no real settlement existed however. 16. Faye, supra note 6, at 653. 1983] COLONIAL LEGAL SYSTEM 397 Royal domain. Proprietors of the company's land grants (concessionaires) were given considerable latitude in choosing the spots for their settlements, since the interior of Louisiana was not well known; and they therefore exercised much discretion in locating their colonists on arrival. 17 However, the company early on had recognized the Arkansas River as an important spot, since it was thought that it might well be the best route to the Spanish mines of Mexico. Thus the company specifically directed where the Arkansas concession should be located and ordered that it be the first occupied. 18 It granted this concession to Law himself. In August of 1721, a group of Law's French engages (perhaps as many as eighty) took possession of land on Little Prairie at or near the site of Tonti's abandoned trading post. 19 (See Figure 2). Although Law was by then bankrupt and had fled France, the news did not reach Louisiana until after Jacques Levens, Law's director in Louisiana, had caused the Arkansas colony to be established under the command of some of his subordinates.20 By December of that year Bertrand Dufresne, sieur du Demaine, replaced Levens as director for Arkansas, and in March of 1722 he took possession of the concession and began an inventory of its effects and papers.21 On his arrival he found only twenty cabins and three arpents (about 2.5 acres) of cleared ground. He reported a total of about fifty men and women resident,22 tristes debris, Father Charlevoix called them,23 of Mr. Law's concession. They had produced only an insignificant harvest. Lieutenant la Boulaye was nearby with a military detachment of seventeen men.24 (See Figure 1). Despite the existence of a company store at the Arkansas concession, both the colony and the military establishment were in considerable difficulty.25 Dufresne therefore immediately released twenty of the engages from service and gave them lots to cultivate in the hopes that a better harvest of corn and wheat would be realized in 1722. In February of the following year there were only forty-one colonists remaining, divided now into two small farming communi- 17. 4 M. GIRAUD, H!STOJRE DE LA LOUISIANE FRANc_;;AISE 198 (1974). 18. Id. 19. Id. 20. Id. at 199. 21. Id. at 271. 22. Id. at 272. 23. 6 P. CHARLEVOIX, JOURNAL D'UN VOYAGE FAIT PAR ORDRE DU Roi DANS L'AMERIQUE SEPTENTRIONNALE 164 (1744). 24. 4 M. GIRAUD, supra note 17, at 273. 25. The following paragraph is based on Id. at 273-74. 398 UALR LAW JOURNAL [Vol. 6:391 ties: Fourteen men and one woman at Law's concession under Dufresne, and sixteen men, some with families, two leagues down the river with the troops. Among this latter group there lived six black slaves. 26 Benard la Harpe, while exploring the river in 1721, had predicted, or at least hoped for, a turn in the fortunes of the struggling colony, but that hope proved false and in 1727 Father Paul du Poisson, the Jesuit missionary to the Arkansas, reported that only about thirty Frenchmen remained behind.27 The military post had been abandoned two years previous. 28 Village des Arcan~as ---N Poste francais commande par le S. la Boulaie 0 - - - -, ·: ·Concession de M. Law I I L. --- ' MISSISSIPPI Figure 1 Sketch of the location of Law's colony by Dumont de Montigny,Archives Nationales, Paris, 6 JJ-75, Piece 254. All this seemed worth recounting in some detail because for generations historians of Arkansas have believed that a colony of Germans once occupied their river. Law did recruit many Germans for settlement in Louisiana, and they were destined for the Arkansas, but as soon as the news of Law's bankruptcy reached the colony 26. Recensement General des Habitans Estab!ys,,.SoteJouy Arkansas et d~s Ouvrier~ ~e la Concession cy devant Apartenant a M. Law, 18 February, 1723. (Transcnpt at Lomsiana History Center, Louisiana State Museum, New Orleans). 27. Du Poisson to Father___, translated in Falconer, Arkansas and the Jesuits in 1727-A Translation, 4 PUBLICATIONS OF THE ARKANSAS HISTORICAL ASSOCIATION 352, at 375 (1917). 28. Faye, supra note 6, at 670. 1983] COLONIAL LEGAL SYSTEM 399 in June of 1721, the Compagnie des Indies took over the direction of his concession;29 and when the time arrived to transport the German immigrants to Arkansas, the company, in an economy move, decided instead to send them to Delaire's grant in Lower Louisiana.30 In short, none of Law's Germans ever reached Arkansas. This is a pity, as the prospect of discussing, or at least imagining, a group of German immigrants living under French law on the Arkansas River was an intriguing one--one of which the facts have now unfortu-nately deprived us. · III Before 1712, the colony of Louisiana, with a population of only a few hundred, had been entirely under military rule and regular civil regulation was altogether lacking. On September 19, 1712, the Crown granted a trade monopoly to Antoine Crozat but he was given no governmental authority: As Henry Dart noted, the charter was "only an operating contract with the duties of government retained in the Crown."31 However, the charter did adopt as law for the colony "nos Edits, Ordonnances Et Coutumes Et !es usages de la Prevoste Et Vitf/omte de Paris--our edicts, ordinances, and customs, and the usages of the Provostry and Viscounty of Paris."32 The Coutume, despite its name, was actually a small code of some 362 titles first reduced to writing in 1510,33 and treating both substantive and adjective law. It was itself terse, indeed epigrammatic; but the commentary on it by the time of its adoption in Louisiana was voluminous. 34 Annotated versions of the Coutume were therefore very popular in France and in time they found their way to Louisiana.35 Also in 1712, by a separate instrument, a new and important institution was created for the colony, the Superior Council of Louisiana. 36 Modelled on the governmental arrangements already in 29. 4 M. GIRAUD, supra note 17, at 216. 30. Id. at 248. 31. Dart, The Legal Institutions of Louisiana, 3 SOUTHERN LAW Q. 247 (1918). This article also appears in 2 LA. HIST. Q. 72 (1919). 32. The charter is printed in 4 PUBLICATIONS LA. HIST. Soc. 13, at 17 (1909). 33. For a precis of its provisions, title by title, see Schmidt, History ef the Jurisprudence of Louisiana, l LA. L. J., no. l, l (1841). 34. The most useful eighteenth-century commentary is C. FERRIERE, CoMMENTAIRE SUR LA CouTUME DE LA PREVOTE ET VICOMTE DE p ARIS. It is available in several editions. 35. Dart, The Law Library ef a Louisiana Lawyer in the 18th Century, 25 REPORTS OF THE LOUISIANA BAR ASSOCIATION 12, at 22 et seq. (1924). 36. See Dart, supra note 31, at 249 et seq. See also, for some discussion of the work of this body, Hardy, The Superior Council in Colonial Louisiana, in FRENCHMEN AND FRENCH 400 UALR LAW JOURNAL [Vol. 6:391 place in other French colonies, the Council had original and exclusive jurisdiction to decide disputes arising anywhere in Louisiana. It consisted of the Lieutenant General of New France; the Intendant of the same; the Governor of Louisiana; a first councilor of the king; two other councilors; the attorney general; and a clerk. Judgments in civil cases required the concurrence of at least three members and in criminal cases at least five. The Council was originally created to exist for three years, but on September 7, 1716, it became by virtue of a Royal Edict a permanent institution.37 In 1717 a fundamental change occurred in the government of Louisiana. In that year Crozat, having lost an enormous sum under his operating charter, surrendered it, and John Law's Compagnie d'Occident was given a monopoly over trade in the colony. In addition, unlike Crozat's company, the Compagnie d'Occident was granted extensive governmental authority: It had the power to appoint the Superior Council, to name governors and military commandants, and to appoint and remove all judges. The charter also provided that "Seront tous !es juges Etbalis en tous !es d. Lieux tenus de juger suivant !es Loix Et ordonnances du Royaume Et se Con-former a la Coutume de la prevoste Et Vicomte de Paris. . . ."; that is, that "all the judges established in all the said places shall be bound to judge according to the laws and ordinances of the realm, and [shall also be bound] to conform to the customs of the Prevostry and Viscounty of Paris."38 This portion of the charter obviously provided for the reception of general French legislation and the Custom of Paris. In addition, it has been shown that subsequent French legislation, as soon as it was registered in the colony, and the legislation of the Superior Council itself, formed part of the body of colonial Louisiana law.39 The subsequent French legislation was of three distinct sorts: (a) general legislation; (b) special colonial legislation; ( c) colonial legislation passed specifically for Louisiana. 40 Two years later we hear for the first time about inferior courts for outlying portions of the colony. On September 12, 1719, the king noted the need to appoint persons to act as judges "to facilitate w A YS IN THE MISSISSIPPI v ALLEY 87 (J. McDemott ed., 1969); Micelle, From Law Court to Local Government: Metamorphosis of the Superior Council of French Louisiana, 9 LA. HIST. 85 (1968). 37. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 21-23 (19CS). 38. Id. at 48. 39. Baade, Marriage Contracts in French and Spanish Louisiana: A Study in "Notarial" Jurisprudence, 53 TUL. L. REV. 3, 9 (1978). 40. Id. 1983] COLONIAL LEGAL SYSTEM 401 the administration of justice in places distant from the place where the Superior Council holds it sessions."41 The "heads or directors" of concessions along with "other of our subjects, capable and of probity" were to "exercise both civil and criminal justice." The edict went on to provide that, even in these inferior courts, "three judges shall sit in civil matters and in criminal matters five judges . " The plan, evidently, was to have a kind of provincial council at each settlement. The king further provided that an appeal from these local tribunals would lie in all cases to the Superior Council.42 All this was being done, of course, to make ready the way for Law's colonizing schemes. In 1720 or 1721 Louisiana was for the first time divided into districts (or counties). Arkansas was one of the nine districts originally created, and a local commandant and a judge was assigned to each "to put justice with greater ease in reach of the colonists."43 Presumably, and understandably, the plan to establish local councils outside New Orleans was abandoned at this time. The sources simply fail us on the question of whether more than one person was expected to sit on local courts, but it could not have proved workable in remote places like Arkansas to assemble a multi-member judicial body. In May of 1722 the Regent issued an order creating a provincial council for Illinois, the jurisdiction of which supposedly extended from "all places on and above and Arkansas River . . . to the boundaries of the Wabash River." The commandant of the Illinois, Lieutenant de Boisbriant, was to serve as "chief and judge" of this so-called council, which in fact had only one other member.44 It thus seems to have been the plan to abolish the Arkansas district and annex its territory to its nearest northern neighbor; and the Illinois provincial council was directed "to hold its sessions at the places where the principal factories of the company shall be estab- 41. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 63 (1908). 42. The translation in the text is mine. The entire edict is translated and discussed in Dart, supra note 31, at 261 et seq. Further discussion of this edict can be found in Dart, The Colonial Legal Systems of Arkansas, Louisiana, and Texas, 27 REPORTS OF THE LOUISIANA BAR ASSOCIATION 43 at 52 (1926). 43. Id. at 267. The other districts were New Orleans, Biloxi, Mobile, Alibamous, Natchez, Yazoo, N atchitotches, and the Illinois. 44. Translated extracts from this order appear in 2 J. WHITE, A NEW COLLECTION OF LAWS, CHARTERS, AND LOCAL ORDINANCES OF THE GOVERNMENTS OF GREAT BRITAIN, FRANCE, AND SPAIN, RELATING TO THE CONCESSION OF LAND IN THEIR RESPECTIVE COLONIES . 439-40 (1837). 402 UALR LAW JOURNAL [Vol. 6:391 lished."45 This language could have been construed to require the Illinois council to sit at the Arkansas. It is, however, very much to be doubted that such a session was ever held, and certainly it is not believeable that anyone would repair from Arkansas to Illinois to settle a grievance in 1722. It seems probable, then, that whatever judicial functions were exercised at the Arkansas were entrusted to its resident directors even after the supposed creation of the council of the Illinois. The only resident director that the Arkansas ever had was, as we saw, Bertrand Dufresne, sieur du Demaine, who arrived at the Post March 22, 1722, and he was evidently the judge from that point on. Prior to that, Jacques Levens had been director, but as he never took up residence in Arkansas we have to presume that if judicial functions were undertaken by anyone, it was by one or more of the three subordinates to whom Levens had entrusted the management of the struggling colony: Jean-Baptiste, Menard, Martin Merrick, and Labro.46 When Dufresne left the Arkansas around 1726 we can hardly guess the means resorted to for the settlement of disputes. Probably Father Paul du Poisson, the Jesuit missionary resident from 1727 to 1729, used his good offices to maintain order among the approximately thirty Frenchmen who had remained behind.47 It seems probable, therefore, that Arkansas's first sustained exposure to European legal proceedings and principles occurred in the period during which Law's Company held sway in Louisiana. Tonti's seventeenth-century feudal seignory no doubt carried with it the right to render justice. Though his charter from La Salle has not as yet come to light,48 other conveyances of La Salle's are extant; and in them he gave his grantees judicial power over small cases ("low justice" this is called) while specifically reserving important cases ("high justice") to himself. (Cases of the latter type he directed to be heard by the judge "who shall be established at Fort St. 45. Id. at 440. 46. 4 M. GIRAUD, supra note 17, at 272. Menard left the Arkansas in 1722 (jd., 275) and was in New Orleans in 1720. Index to the Records efthe Superior Council of Louisiana, 4 LA. HIST. Q. 349 (1921). 47. Dufresne appears in the Arkansas census of January !, 1726; but on October 21, 1726, he is described as a "settler in Arkansas, but now domiciled with Mr. Traguidy [in New Orleans]." Index to the Records of Superior Council of New Orleans, 3 LA. HIST. Q. 420 (1920). In 1727 there was no director at the Arkansas, as Father Du Poisson tells us that he took up evidence in "the India Company's house, which is also that of the commandants when there are any here . " See Falconer, supra note 27, at 371. 48. For a charter from Tonti to Jacques Cardinal, one of his men at the Arkansas, see THE FRENCH FOUNDATIONS, supra note 9, at 396. 'Fhla is tlae Olll)' grant gf Tgati's eKtastF 1983] COLONIAL LEGAL SYSTEM 403 Louis.")49 We do not know whether Tonti's charter contained identical provisions but it certainly would have contained similar ones. But during the fifteen years or so that Tonti held the right to dispose of certain cases arising in his seignory, it hardly seems credible that he or his deputies ever held anything resembling a court, or even executed many instruments or documents.50 IV In 1731 the Compagnie d'Occident surrendered its charter to Louis XV, and for the rest of the period of French dominion Louisiana was a Crown Colony. Late that same year a military garrison was re-established in Arkansas; it consisted of twelve men commanded by First Ensign de Coulange and was located again on the edge of Little Prairie. 51 (See Figure 2). It was apparently during the reorganization of the colony in 1731 that civil and military authority at the outposts of Louisiana were combined in the commandant of the garrison-an arrangement that would survive into the Spanish period and even for a short time during the American regime. Part of a post commandant's civil authority was to act as notary and judge. The exact scope of his judicial jurisdiction during the French period is obscure, there being no document of which I am aware which describes it specifically. Parkman, writing of conditions in the Illinois in 1764, says that the "military commandant whose station was at Fort Chartres on the Mississippi, ruled the Colony with a sway as absolute as that of the Pasha of Egypt, and judged civil and criminal cases without right of appeal."52 Captain Phillip Pittman, an English engineer and Mississippi explorer who was writing at almost exactly the same time, gives a slightly different version. According to him, the Illinois commandant "was absolute 49. Concession in fee by La Salle to Pierre Prudhomme, in id. at 32. 50. When Tonti petitioned for confirmation of his charter, he was evidently refused. The petition is printed in E. MURPHEY, HENRY DE TONTI, FUR TRADER OF THE MISSISSIPPI 119 (1941). It is possible that La Salle did not have the power to make permanent grants and that may be the reason that Tonti needed confirmation. The Letters Patent of May 12, 1678, giving La Salle the right to explore "the western part of New France" in the king's behalf, gave him the power to build forts wherever he deemed them necessary; and he was "to hold them on the same tern1s and conditions as Fort Frontenac." See T. FALCONER, ON THE DISCOVERY OF THE MISSISSIPPI 19 (1844). La Salle said expressly in 1683 that this allowed him to "divide with the French and the Indians both the lands and the commerce of said country until it may please his majesty to command otherwise . " See THE FRENCH FoUNDATio~;upra note 9, at 43. The language is ambiguous, but on one permissible reading it indicates a specifically reserved power in the king to revoke grants made by La Salle. 51. Faye, supra note 6, at 673. 52. Quoted in Dart, supra note 31, at 249. 404 UALR LAW JOURNAL [Vol. 6:391 in authority, except in matters of life and death; capital offences were tried by the council at New Orleans."53 Of course, the Arkansas commandant's judicial jurisdiction was not necessarily as extensive as that possessed by the commandant of the Illinois. He may very well have been subordinate to the Illinois commandant during most of the French period. Some fitful light is thrown on the judicial authority of the Arkansas commandant by an interesting proceeding which took place at the Post in 1743.54 In October of that year, Anne Catherine Chenalenne, the widow of Jean Francois Lepine, petitioned Lieutenant Jean-Francois Tisserant de Montcharvaux, whom she styled "Commandant for the King at the Fort of Arkansas," asking him to cause an inventory and appraisal to be made of the community property in her possession. The object in view was to make a distribution to the petitioner's son-in-law and daughter who had the previous May lost all their goods when attacked by Chickasaws on the Mississippi not far below the mouth of the Arkansas. They had narrowly escaped with their lives.55 Widow Lepine had decided to make a distribution to "her poor children, at least to those who have run so much risk among the savages." She was preparing to marry Charles Lincto, a well-to-do resident of the Post, and she wished to dissolve the old community which by custom had continued after her husband's death in her and their children. The commandant informed Madame Lepine that on 26 October, 1743, he would inventory the "real and personal property derived from the marital community" and would bring with him two persons to look after the widow's interest and two to represent the children. The idea was that each party in interest should have independent appraisers present to insure the impartiality of the inventory and evaluation. De Montcharvaux in the presence of these and other witnesses caused the inventory to be made on the appointed day. The estate was fairly sizeable, being valued at 14,530 /ivres and 10 sols. It contained a great deal of personalty, including four slaves, a number of animals, 1600 pounds of tobacco, and notes and accounts receivable; the realty noted was "an old house" with three small outbuildings. Interestingly, no land was mentioned. There are two possible explanations for the absence of land in S3. P. PITTMAN, THE PRESENT STATE OF THE EUROPEAN SETTLEMENT ON THE M1ss1sSIPPI S3 (1770) (Reprinted with intro. by R. Rea 1973). S4. The relevant documents are translated in Core, Arkansas through the Looking Glass ef 1743 Documents, 22 GRAND PRAIRIE HISTORICAL SOCIETY BULLETIN 16 (1979). SS. This incident is reported and discussed in Faye, supra note 6, at 677-78. 1983] COLONIAL LEGAL SYSTEM 405 the inventory. One is that land may not have been actually granted to Arkansas settlers but only given over temporarily to their use. The other possibility is that the land on which the house was built had belonged to Lepine before the marriage and had remained his separate property under his marriage contract or under the general provisions of the Coutume de Paris. The Coutume, which, as we have seen, was in force in French Louisiana, provided that all movables (personalty), belonging to a husband or wife, whenever acquired, became part of the community; but only certain immovables (realty) acquired after the marriage were so treated.56 This rule could be altered by contract, but in Louisiana, as in France, the Coutume was often specifically incorporated into marriage contracts by future spouses in defining the regime that would rule their property; 57 and if there was no contract provision creating a property regime, the Coutume of course automatically applied. The inventory is said to have been made "Pardevant nous Jean Francois Tisserant Ecuyer Sieur Demoncharvaus Commandant pour le Roy au Fort des Arkansas." The formulapardevant nous ("before us") is Parisian notarial boiler-plate and indicates that the commandant was acting in his surrogate notarial capacity. To an American common lawyer, the notary is not a member of the legal profession, not even a paralegal. But in seventeenth- and eighteenth-century France he enjoyed a much more elevated status, as indeed he still does in that country. Originally an official of the medieval European ecclesiastical courts, the notary developed into a noncontentious secular legal professional in France. In England, partly because the canon and secular laws were not on speaking terms, "the notarial system never took deep root."58 For one thing, an important aspect of the notary's duties, his authority to "authenticate" documents, was of little use to the English. The whole notion of a state-sanctioned authenticator of private acts was entirely foreign to the common law: Whereas in France we see notaries "making" and "passing" contracts, the common law left that to the parties. The state was very much in the background in England, and was called upon only to enforce obligations that arose by force of nature. The other aspect of the French notary's duties, the drafting of instruments, conveyancing, and the giving of legal advice, was per- 56. See Baade, supra note 39, at 7, 8. 57. Id. at 25. 58. l F. POLLOCK & F. MAITLAND, A HISTORY OF ENGLISH LAW 218 (2d ed., reissued with intro. by S. Milsom 1968). 406 UALR LAW JOURNAL [Vol. 6:391 formed by the regular legal profession in England. It is true that there was a scriveners' company organized in London in the sixteenth century which was granted a charter in the reign of James l.59 Members were empowered to draft legal documents, especially obligations (or bonds), and they gave a certain amount of low-level legal advice particularly in commercial and banking matters. 60 The few secular notaries who practiced in London at that time concerned themselves mainly with drafting documents relevant to international trade, and they were members of this company.61 But in the eighteenth century the company lost its effort to keep commonlaw attorneys from competing, and in 1804 parliament made conveyancing the monopoly of the regular legal profession.62 In contrast, the French notary's duties by the eighteenth century had come to include not only the familiar ones of administering oaths, taking acknowledgements, and giving "authenticity" to "acts" of private persons by attesting them officially, but they also ran generally to the drafting of documents, conveyancing, and the giving of practical legal advice.63 It is not surprising, therefore, that notaries would 59. See 12 w. HOLDSWORTH, A HISTORY OF ENGLISH LAW 70 (1938). See generally on the notary in England, Gutteridge, The Origin and Development ef the Profession of Notaries Public in England, in CAMBRIDGE LEGAL ESSAYS 12 (1926). 60. 12 w. HOLDSWORTH, supra note 59, at id. 61. 5 w. HOLDSWORTH, supra note 59, at 115 (3d ed. 1945). 62. 12 w. HOLDSWORTH, supra note 59, at 71-72; T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 227-28 (5th ed. 1956). 63. As draftman of wills, marriage contracts, and conveyances, Mons. le Notaire has survived in France as a much respected person, especially in the country villages. He is a general non-forensic legal practitioner, his part in the legal scheme "being confined to voluntary as distinct from contentious jurisdiction." Brown, The office of Notary in France, 2 INT'L & COMP. L. Q. 60, at 64 (1953). Indeed, the French notary is close to the equivalent of the English solicitor, except for the latter's participation in litigation. Thus one modern-day commentator opined that "a solicitor would feel much at home in the etude of the French notary, though he would be surprised, and perhaps disappointed, by the cordiality of the morning post." Id. at 71. Today in Louisiana as well the notary enjoys considerable powers. See Burke & Fox, The Notaire in North America: A Short Study of the Adaptation of a Civil Law Institution, 50 TUL. L. REV. 318, at 328-32 (1975); Brosman, Louisiana-An Accidental Experiment in Fusrim, 24 TUL. L. REV. 95, 98-99 (1949). The Louisiana notary has the power "to make inventories, appraisements, and petitions; to receive wills, make protests, matrimonial contracts, conveyances, and generally, all contracts and instruments of writing; to hold family meetings and meetings of creditors; . to affix the seals upon the effects of deceased persons and to raise the same." LA. STAT. ANN.§ 35:2 (1964). When the Louisiana legislature defined the practice of law, and prohibited all but licensed attorneys from engaging in it, it therefore remembered to except acts performed by the notary which were "necessary or incidental to the exercise of the powers and functions of (his] office." LA. STAT. ANN. § 37:212(B) (1974). A walk through modern-day New Orleans will reveal a number of signs proclaiming the existence of "Law and Notarial Offices", a combination having an odd ring in the ears of an American common lawyer. The Louisiana notary is simply "a different and 1983] COLONIAL LEGAL SYSTEM 407 make an appearance in eighteenth-century Louisiana. In New Orleans, of course, there was much work for them, but there were also provincial notaries operating in Biloxi, Mobile, Natchitoches, Pointe Coupee, and Kaskaskia.64 Since De Montcharvaux acted as notary for the Lepine inventory, it is reasonably clear that there was no provincial notary resident at the Arkansas at that time. This comes as no surprise since in 1746 there were at the Post only twelve habitant families, ten slaves, and twenty men in the garrison, 65 hardly a sufficient European population to require or attract a law-trained scrivener. When it was time to have their marriage contract made, the widow Chenalenne and her future spouse executed it in New Orleans. No doubt there was available there legal advice on which they might more comfortably rely.66 Besides, there was at that time no resident priest at the Post to perform the marriage. v On May 10, 1749, an event occurred that considerably reduced the European population of Arkansas and also made it difficult to attract settlers there for some time. On that day, the Post was attacked by a group of about 150 Chicaksaw and Abeka warriors. Their coming was undetected67 and thus they caught the small habitant population altogether unaware. They burned the settlement, killed six male settlers, and took eight women and children as slaves.68 The census taken later that year shows, not surprisingly, that the population had decreased since the previous census. Seven more important official person than is the notary public in other jurisdictions of the United States." Brosman, supra at 98. 64. See Baade, supra note 39, at 12. 65. Memoire sur /'Eta! de la Colonie de la Louisiane en 1746. Archives des Colonies, Archives Nationales, Paris [hereinafter cited as ANC], Cl3A, 30:242-281, at 249, (Typescript of original document available at Little Rock Public Library). As the average family size in Arkansas in the middle of the eighteenth century was about four, this would put the number of habitant whites at the Post at about forty-eight. 66. For an abstract of this marriage contract, see Records o.f the Superior Council o.f Louisiana, 13 LA. HlsT. Q. 129 (1944). 67. However, the habitants may have had a warning that something was afoot, for on May l, Francois Sarrazin had written from Arkansas that "two savages have killed a man and a woman and burnt a man in the frame." Records efthe Superior Court o.f Louisiana, 20 LA. HlsT. Q. 505 (1937). This incident may have been connected with the attack nine days later. 68. Vaudreuil to Rouille, September 22, 1749, calendared in THE VAUDREUIL PAPERS 59-60 (B. Barron ed., 1975). See also Faye, supra note 6, at 684 et seq. W. BAIRD, THE QUAPAW INDIANS: A HISTORY OF THE DOWNSTREAM PEOPLE 34 (1980), gives the number taken as slaves as thirteen. 408 UALR LAW JOURNAL [Vol. 6:391 men, eight women, eight boys, and eight girls remained, a total of only thirty-one white habitants at the Poste des Akansa .69 Nor did all this mark an end to serious trouble. When in June of 1751 First Ensign Louis-Xavier-Martin de Lino de Chalmette, the commandant of the Post, went uninvited to New Orleans to consult with the governor, his entire garrison of six men took the opportunity to desert. 70 Things were obviously at a critical juncture. When later in 17 51 Lieutenant Paul Augustin le Pelletier de la Houssaye took command at Arkansas he found there a post recently rebuilt by its habitants and _voyagij,tfrs and probably already relocated to a spot ten or twelve miles upriver at the edge of the Grand Prairie. (See Figure 2). It is clear that Governor Vaudreuil had determined to hold the Arkansas even if the cost proved high, for he assigned to De La Houssaye a large company of forty-five men.71 The lieutenant was also authorized to build a new fort; government funds being lacking, he undertook the construction at his own expense in return for a five-year Indian trade monopoly.72 This new beginning could, in the nature of things, have given only a slight lift to the prospects for sustained settlement in the Arkansas country. Late in 1752 Governor Vaudreuil was informed that the Osages had attempted an attack on Arkansas Post but had failed. 73 While this indicates a stability of sorts for the l?ost, thanks no doubt to the size of the new garrison, still the perceived danger must have been so high as to discourage all but the most intrepid from taking up residence at the Arkansas. Mentions of Arkansas in the legal records tend to emphasize the dangerousness of the place. For instance, a couple from Pointe Coupee, on the verge of leaving for a hunting trip to the White River country, thought it best to deed their property to a relative, with the stipulation that the deed was to be void if they returned.74 It is not surprising, therefore, that even as late as 1766, the last year of French dominion, only eight habitant families, consisting in all of forty white persons, were resident at Arkansas Post.75 69. Arkansas Post Census, 1749, Loudon Papers 200, Huntington Library, San Marino, CA. There were also fourteen slaves resident at the post and sixteen voyageurs who had returned after their winter's work. There were five hunters on the White River and four on the St. Francis. Thirty-five hunters had failed to return from the Arkansas River. 70. Faye, supra note 6, at 708. 71. Id. at 211. 72. Id. 73. THE VAUDREUIL PAPERS, supra note 68, at 136. 74. Index to the Records of the Superior Council of Louisiana, 24 LA. HlsT. Q. 75 (1941). 75. See Din, Arkansas Post in the American Revolution, 40 ARK. HIST. Q. 3, at 4 (1981). 1983] COLONIAL LEGAL SYSTEM 409 All of these difficulties, and others, made for a place in which it might be regarded as too polite to expect the presence of much which corresponds to a legal system. In addition, political exigencies sometimes interfered to such an extent that the application of even-handed legal principle became inexpedient and thus entirely impracticable. For instance, the continued existence of the Arkansas settlement depended heavily on the loyalty of the Quapaws and their wishes were therefore relevant to any important decision made there. Their influence could extend even to the operation of the legal system as the following incident demonstrates. On 12 September, 1756, a meeting was held in the Government House in New Orleans to hear an extraordinary request from Guedetonguay, the Medal Chief of the Quapaws.76 His tribe had captured four deserters from the Arkansas garrison and had returned them; but the chief had come on behalf of his nation to ask Governor Kerlerac to pardon the soldiers. One of those captured, Jean Baptiste Bernard, in addition to having deserted, had killed his corporal Jean Nicolet within the precincts of the fort. The chief, obviously a great orator, said that he had come a long distance to plead for the soldiers' lives despite the heat and the demands of the harvest; and in his peroration he said that his head hung low, hi~ eyes were fixed to the ground, and his heart wept for these men. He knew, he explained, that if he had not come they would have been executed, and this was intolerable to him because he regarded them as his own children. He recited many friendly acts of the Qua paws to prove the fidelity of his people to the French. Among them was the release of six slaves (perhaps Chicaksaws captured by the Quapaws) "who would have been burned" otherwise, and the recent capture of five Choctaws and two trespassing Englishmen. He himself, he noted, had recently lost one son and had had another wounded in the war against the Chickasaws; and he . counted this "a mark of affection for the French." In recompense he asked for the pardon of the soldiers. The chief added that this was the only such pardon his nation had thus far requested, and he promised never to ask again. He did not doubt that Kerlerac, "the great chief of the French father of the red men," charged to govern them on behalf of "the great chief of all the French who lived in the 76. What follows is based on a memorandum entitled "Harangues faites dans /'assemb/ee tenue a /'hotel du gouvernment cejourdhui, 20 Juin 1756," found in ANC, Cl3A, 39:177-180 (Transcript at Little Rock Public Library). The translations are mine. 410 UALR LAW JOURNAL [Vol. 6:391 great town on the other side of the great lake," would listen and do the just thing. Guedetonguay left his best argument for last. He maintained vigorously that, under his law, any criminal who managed to reach the refuge of the Cabanne de Valeur where the Quapaws practiced their religious rites was regarded as having been absolved of his crime. It was their custom everywhere that the chief of the Cabanne de Valeur "would sooner lose his life than suffer the refugee to undergo punishment for his crime." Evidently the soldiers were claiming this right; and Ouyayonsas, the chief of the Cabanne de Valeur, was there to back them up. This last argument was an excellent one because it called upon the French to recognize an established Indian usage not dissimilar from the European custom of sanctuary. And the argument carried with it a threat of violent reaction if the custom were not allowed. Kerlerac answered the chief that he was not unmindful of the past services of the Quapaws, nor was he ungrateful for them. "But," he said, "I cannot change the words declared by the great chief of all the French against such crimes, and . . . it would be a great abuse for the future" to pardon the soldiers. So, he continued, "despite all the friendship that the French have for you and your nation, these men deserve death." The great chief stood for a long time with his head down and finally answered ominously that he could not be responsible for the revolutions which the chief of the privileged house might stir up-revolutions which he said ''would not fail to occur." The argument continued and the governor offered to grant the chief "anything else except these four pardons." But Guedetonguay stubbornly maintained that "the sole purpose of his journey was to obtain the pardon of the four men." In the end the Governor extracted from the Quapaw chiefs "publicly and formally their word . . . that they would in the future deliver up all deserting soldiers as malefactors or other guilty persons without any restriction or condition whatsoever, and that . pardons would be accorded at the sole discretion of the French." No immediate decision was reached by the Governor, but later that day some of his advisors, having reflected on what they had heard, reckoned "that a refusal of the obstinate demands of these chiefs . . . the faithful allies of the French would only involve the colony in troublesome upheavals on the part of the said nations who have otherwise up to the present served very faithfully." They con- 1983] COLONIAL LEGAL SYSTEM 411 eluded that "saving a better idea by Monsieur le Gouverneur it would be dangerous, under all the present circumstances, not to satisfy the Indians with the pardons which they demanded." The governor took the advice but evidently did not write to Berryet, the French Minister of the Marine, for some time to tell him about it. From the comfort of Versailles it was easy for Berryet to pick at Kerlerac's decision.77 In responding to Kerlerac, Berryet first made the point that Bernard's case was different from that of the other captured soldiers since he was accused of homicide in addition to desertion. Then, too, the minister had a lot of questions. Could not the difference in Bernard's case have been urged on the Arkansas chiefs to get them to relent in his case? Where was the record of the legal proceedings which should have been conducted relative to the killing? If this was a wilfull murder the pardon had been conceded too easily. "It would be dangerous," the minister warned, ''to leave such a subject in the colony, not only because he would be an example of impunity but also because of new crimes that he might commit." (The arguments of general and specific deterrence are not very recent inventions.) Finally, the governor was sternly admonished "not to surrender easily to demands of this sort on the part of the savages . If on the one hand it is necessary, considering all the present circumstances, to humor the savages, it is also necessary to be careful of letting them set a tone that accords neither with the king's authority nor the good of the colony." Nevertheless, the minister talked to the king and he ratified the governor's decision. Writs of pardon were therefore issued under the king's name for each of the Arkansas soldiers. Because the homicide committed by Bernard was not a military crime and was cognizable therefore by the Superior Council of Louisiana, his pardon was directed to the Council. Interestingly, though Berryet admitted knowing nothing of the circumstances surrounding the killing, the pardon recited that a quarrel had arisen between Bernard and Nicolet, that they had beaten each other, that Bernard : "had had the misfortune to kill the said Nicolet," and that the death "had occurred without premeditated murder."78 Thus Louis XV pardoned Jean Baptiste Bernard for killing by mischance when there was no evidence adduced as to the facts resulting in Nicolet's 77. What follows is based in Berryet's letter to Kerlerac and Bobe Descloseaux dated July 14, 1769. ANC, B, 109:487-88 (Transcript at Little Rock Public Library). The translation is mine. 78. The pardon (brevet de grtJce) was enclosed in the letter and is ANC, B, 109:489 (Transcript at Little Rock Public Library). The translation is mine. 412 UALR LAW JOURNAL [Vol. 6:391 death. The decision was generated simply by a desire to accommodate an important ally. Faithful adherence to legal principle sometimes had to take a back seat to the more compelling demands of politics. VI Father Louis Carette, the Jesuit missionary who came to the Post of Arkansas in 1750, nevertheless attempted to bring some order to the legal affairs of the place. As he noted in a procuration (power of attorney) dated at Arkansas in 1753, he was "authorized by the king to make in every post where there is not a Notary Royal all contracts and acts . "79 There is no evidence that he had any formal legal training, but he was a Jesuit, and thus a learned man, one of a handful of such who would make their residence in eighteenth- century Arkansas. The 1753 procuration is itself of some interest, as it sheds light on how litigants whose cases were technically beyond the jurisdiction exercised by the Arkansas commandant (whatever that was) might have had their cases heard if they wanted to resort to regular methods of dispute settlement. As incredible as it seems, it is probable that the only court of general jurisdiction in the entire colony was the Superior Council of Louisiana. Now, in 1763 La Harpe said that it was a two-week boat trip from the Arkansas to New Orleans, and six to eight weeks back.80 Obviously, the procuration was an important device for people in remote posts like Arkansas, for it enabled them through their attorneys, in the language of the document under discussion, "to act . . . as though they were personally present."81 Convoys or individual vessels travelled down the Mississippi frequently enough to make this means of tending to legal affairs more tolerable than it might otherwise have been. In this case, the attorney chosen was Commandant de la Houssaye, and he was deputed to act in a probate matter at Pointe Coupee for Etienne de Vaugine de Nuysement and his wife Antoinette Pelagie Petit de Divilliers. An interesting feature of procurations which increased their utility and flexibility was that they were assignable. This feature came in handy in this instance since De La Houssaye, having 79. Index to the Records of the Superior Council of Louisiana, 22 LA. H!sT. Q. 255 (1939). 80. La Harpe to Chosseul, August 8, 1763, ANC, Ci3B, 1 (Typescript in Little Rock Public Library). 81. Records, supra note 79, at id. 1983] COLONIAL LEGAL SYSTEM 413 been detained at the Arkansas due to illness, simply transferred the power of attorney to a member of the Superior Council "to act in my place as myself."82 Perhaps one of the reasons that Carette had acted as notary in this instance was that the only other person in the little community authorized so to act, the commandant, was a party to the instrument. But in the French period priests were given general notarial powers and could act even in the absence of circumstances disabling the commandant. For instance, Carette acted as notary, and thus probably draftsman, for a marriage contract in which the commandant was not interested. This was the marriage contract of Francois Sarrazin and Francoise Lepine, executed at Arkansas Post on January 6, 1752. Marriage contracts have no exact parallel in common-law practice, and it thus seems worthwhile, before discussing the particulars of the Sarrazin-Lepine contract, to devote some time to their explanation and description. In a recent seminal study, Professor Hans Baade has outlined the provisions which one typically finds in marriage contracts executed in accordance with eighteenth-century Parisian notarial practice.83 The first and invariable undertaking by the future spouses was a promise to celebrate their marriage in facie ecc! esiae. The parties would then choose the regime which would govern their property during the marriage. Next would come a declaration that the ante-nuptial debts of the parties were to remain their separate obligations; this was followed by a disclosure of the parties' assets, a requirement for the validity of the previous provision. The dowry brought to the marriage by the wife was next recited; and delineating preciput, the right of the spouse to specific property in the event of dissolution of the community, frequently followed. Finally came the donation clause, usually a reciprocal grant of all or part of the predeceasing spouse's estate. In Louisiana, this donation, in order to be valid, had to be registered with the Superior Council in New Orleans. An inspection of the Sarrazin-Lepine marriage contract reveals that it very clearly drew on these French notarial precedents, and it reflects, moreover, an awareness of the practical requirements of the Louisiana registration provisions. It contained a promise to celebrate the marriage in regular fashion, the creation of a community property regime, a clause stating the amount of the wife's dowry, a 82. Id. 83. What follows is taken from Baade, supra note 39, at 15-18. 414 UALR LAW JOURNAL [Vol. 6:391 mutual donation to the survivor of all property owned at death, and an undertaking to have the contract registered in New Orleans.84 While there was no clause dealing with ante-nuptial debts and no mention of preciput, it is quite obvious that the good Jesuit knew more than a little about French notarial practice, and may well have had at his disposal a form book on which he could draw. He was, for all practical purposes, for a time the "lawyer" of the post as well as its cure. Before we leave this interesting document there is an aspect of it which bears detailed attention. The property regime chosen by the parties included in the community "all property, movable and immovable"85-as common lawyers would say, all property, both personal and real. In this respect the contract departs from the Custom of Paris which included in the community all movables but only certain immovables (conquets) acquired after marriage. 86 Parties were allowed in Louisiana to contract almost any property arrangement they wanted, 87 and Sarrazin and Lepine had elected a somewhat unusual variety of community. Curiously, however, the contract reckoned that this regime was "in accordance with the custom received in the colony of Louisiana." A few months after the execution of this contract Commandant de la Houssaye wrote to the governor to say that Monsieur Etienne V augine, a French officer, was of a mind to marry Madame de Gouyon, the commandant's sister-in-law, and he sent along "the proposed conditions for the contract of marriage."88 This was a draft of the contract, as De La Houssaye asked the governor to pass "/'exemplair du contra!" along to the New Orleans notary Chantaloux if the governor decided to give his permission for the marriage. Chantaloux was "to make it as it should be."89 Three weeks later the governor wrote to say that the contract would be sent back soon and that Chantaloux had left it intact except for one reasonably minor alteration.90 In 1758 Father Carette, dismayed by the irreligious inclination of his flock, left the Arkansas and no replacement was sent. In 17 64, 84. Records of the Superior Council of Louisiana, 25 LA. HlsT. Q. 856-57 (1942). 85. Id. at 856. 86. Baade, supra note 39, at 15. 87. Id. 88. La Houssaye to Vaudreuil, Dec. l, 1752, LO 410, Huntington Library, San Marino, CA. 89. Id. 90. THE v AUDREUIL PAPERS, supra note 68, at 152. 1983] COLONIAL LEGAL SYSTEM 415 Captain Pierre Marie Cabaret Detrepi, commandant at the Arkansas, after Madame Sarrazin had found herself widowed, passed a second marriage contract for her which was extremely unsophisticated and rudimentary.91 It contained only a promise to marry regularly and a mutual donation. Perhaps the good widow had by this time tired of long-winded formalities. Just as likely, the Post was feeling the absence of Carette's drafting skills. VII As tiny, remote, and inconsequential as the Arkansas settlement was, then, it is nevertheless clear that at least some of its people were part of the time adherents to French legal culture. Of course almost everyone who lived at the Post during the period of French domination was either a native of France or French Canadian; and by the end of the French period a substantial number of native Louisianans were there. It is most interesting to find the survival of civilian legal form in so remote an outpost of empire. Obviously, not all of Arkansas's residents lapsed into a kind of legal barbarism. There were, however, circumstances at work which would make it impossible for some time to establish a community which could be expected to value the observance of legal niceties very highly. As we have already seen, the Post could not have been very attractive to the more civilized settler owing to its dangerous location. Arkansas Post, moreover, over the years experienced an extreme physical instability since it was necessary to relocate it several times due partly to flooding. (See Figure 2). The Arkansas River was in the eighteenth century "a turbulent, silt-laden stream, subject to frequent floods which were disastrous along its lower course."92 This proved to be a considerable disincentive to settlement. Add to that the enormous expanse occupied by the alluvial plain of the Mississippi and the difficulty becomes plain enough. Almost any site within thirty miles of the mouth of the Arkansas carried with it a considerable risk of floods. Law's colony, on the Arkansas twenty-seven miles or so from its mouth, was said in 1721 to be "in a fertile sector but subject to floods."93 The success of the attack by the Chickasaws in 1749, when the Post was at the same 91. Records of the Superior Council of Louisiana, Feb. 11, 1764, Louisiana History Center, Louisiana State Museum, New Orleans. 92. P. HOI.DER, supra note 15, at 152. 93. 4 M. GIRAUD, supra note 17, at 273 (1974). 416 UALR LAW JOURNAL [Vol. 6:391 location, was made possible by the absence from the neighborhood of the Quapaws: Because of recent floods they had abandoned their old fields for a more promising place upstream.94 This place, called Ecores Rouges (Red Bluffs) by the French, was about thirty-six miles from the mouth of the Arkansas and was at the present location of the Arkansas Post Memorial.95 After the attack, the Post was moved to join the Indians at Ecores Rouges so as to provide for mutual protection.96 The new spot was free from floods but proved unsatisfactory from a strategic standpoint because of its distance from the Mississippi. The location delayed convoys and Governor Vaudreuil expressed the view that "a post on the Mississippi would be more practical."97 Therefore in 1756 the Post was moved back downriver to about ten miles above the mouth. But the inevitable soon occurred. In 1758 heavy flooding, graphically described in a letter of Etienne Maurafet Layssard the garde magasin (storekeeper) of the Post, caused heavy damage, almost undoing the work of builders and architects who had been at work for the better part of a year. The houses were saved by virtue of being raised on stakes against such a day as this; but the habitants' fields, everything but Layssard's garden for which he had providently provided a levee, were entirely inundated.98 It was in fact a small enough loss. From the beginning, and understandably, the attempt to make a stable agricultural community of the Arkansas had failed miserably. There is no doubt that the European population of Arkansas during the French period consisted almost entirely of hunters and Indian traders. In 1726 the reporter of the Louisiana census remarked of the Arkansas that "all the habitants were poor and lived only from the hunting of the Indians." 99 A 1746 report said of the twelve Arkansas habitant families 94. Faye, supra note 6, at 717-19. 95. See figure 2. 96. For details, see Appendix II to my forthcoming book, UNEQUAL LAWS UNTO A SAVAGE RACE; EUROPEAN LEGAL TRADlTIONS IN ARKANSAS, 1686-1836. 97. THE VAUDREUIL PAPERS, supra note 68, at 118. 98. Faye, supra note 6, at 718-19. A detailed description of the repairs made in the summer of 1758, evidently necessitated by these floods, is in ANC, CBA, 40:349-50 (Typescript in Little Rock Public Library). In addition to making repairs, the builders constructed a house 26 feet long and 19 wide just outside the fort for the Indians who came there on business. It was of poteaux en terre construction, was covered with shingles, and was enclosed with stakes. The report describing the renovation and construction work of 1758 is signed by Denis Nicol~s Foucault, chief engineer of the Province of Louisiana. 99. ANC, GI, 464 (Transcript at Little Rock Public Library). 1983] COLONIAL LEGAL SYSTEM • DeWitt ARKANSAS COUNTY • Dumas I I I 0 1. 1686-1699; 1721-1749 N 1 DESHA COUNTY T I I 4 I 8 mi Figure 2 Locations of Arkansas Post, 1686-1983 2. 1749-1756; 1779-1983 3. 1756-1779 JB Based on a map drawn by John Baldwin which appeared in Arnold, The Relocation of Arkansas Post to Ecores Rouges in 1779, 42 ARK. HIST. Q. 317 (1983). Used with permission of the Arkansas Historical Association. 417 418 UALR LAW JOURNAL [Vol. 6:391 that "their principal occupation is hunting, curing meat, and commerce in tallow and bear oil." As for cultivating the soil, the same source reported that the habitants grew "some tobacco for their own use and for that of the savages and voyageurs." 100 In 1765 Captain Phillip Pittman, an Englishman, said that there were eight families living outside the fort who had cleared the land about nine hundred yards in depth. But, according to him "on account of the sandiness of the soil, and the lowness of the situation, which makes it subject to be overflowed," their harvest was not enough even to supply them with their necessary provisions. Pittman noted that "when the Mississippi is at its utmost height the Lands are overflow' d upwards of five feet; for this reason all the buildings are rais'd six feet from the ground." Thus the residents of the Arkansas, he said, subsisted mainly by hunting and every season sent to New Orleans "great quantities of bear's oil, tallow, salted buffalo meat, and a few skins." 101 Both Layssard102 and Father Watrin103 hint that the discouragement produced by the frequent flooding contributed to Father Carette's decision to leave. However that may be, it must be clear that during the period of French dominion the Post did not provide fertile soil for either crops or religion. Would regular bourgeois legal procedures have generally been afforded a more cordial acceptance? Even absent direct evidence, this would in the abstract seem most unlikely. Unsafe, unstable, and uncomfortable, the Arkansas Post of Louisiana during the period of French dominion must surely also have been largely unmindful of bourgeois legal values. It is true, as we have seen, that some of the Post's residents tried to maintain a connection between their remote outpost and European legal culture. But the few legal records that chance has allowed to come down to us from the French period are remarkable not only for their small number but also for the social and economic characteristics they reveal of the people who figured in them. They were an elite, related by marriage and blood, struggling under the difficult circumstances of their situation to participate in regular le- 100. Memoire, supra note 65 (Transcript at Little Rock Public Library). 101. P. PITTMAN, supra note 53, at xliv, 40-41. 10+. See ANC, Cl3A, 40:357 (Transcript in Little Rock Public Library). Layssard there remarks that the inhabitants at Arkansas were too poor to build a levee, and that "the Father would rather leave than go to such an expense. He is very poor." 103. See J. DELANGLEZ, THE FRENCH JESUITS IN LOWER LOUISIANA 444, where Watrin is quoted as saying that, despite there being little hope for conversion of the Quapaws, Father Carette "nevertheless followed both the French and the savages in their various changes of place, occasioned by the overflowing of the Mississippi near which the post is situated." 1983] COLONIAL LEGAL SYSTEM 419 gal processes. The probate proceeding of 1743 was instituted by one of the most well-to-do residents of Arkansas in the person of Anne Catherine Chenalenne, widow of Jean Francois Lepine. The community property inventoried included four slaves. 104 Her future husband Charles Lincto became the most substantial civilian resident of the Post. The 17 49 census, if one excludes from it for the moment the commandant and his household, reveals that Lincto's household accounted for eight of the twenty-nine white habitants and seven of the eleven slaves at the Arkansas. 105 Etienne de Vaugine de Nuysement who executed the procuration of 1753 was a member of one of the most distinguished French families of Louisiana; 106 and he granted the power to Commandant de la Houssaye who would soon become a Major of New Orleans and a Knight of the Royal and Military Order of St. Louis. 107 Vaugine and De la Houssaye married sisters. The marriage contract executed at the Arkansas in 1752 was entered into by the Post's garde magasin and Francoise Lepine, a daughter of Anne Catherine Chenalenne the petitioner in the probate proceeding of 1743; and the bride's dowry had resulted from the dissolution of the community which had been the aim of that proceeding. Finally, Francoise Lepine's second marriage contract, passed by Detrepi in 1764, was prelude to her marriage to Jean Baptiste Tisserant de Montcharvaux, officer and interpreter at the Post and son of the commandant who executed the 1743 inventory. We are dealing with a propertied and interconnected gentry here, a tiny portion of what was anyway a very small population. How the other, the major part of the Arkansas populace regulated their lives during the French period will, in the nature of things, be difficult to document. But there is some evidence on this point and it indicates that there was a good deal of lawlessness on the Arkansas. According to Athanase de Mezieres, the Lieutenant Governor at Natchitoches, the Arkansas River above the Post was inhabited largely by outlaws. "Most of those who live there," he claimed, "have either deserted from the troops and ships of the most Christian King and have committed robberies, rape, or homicide, 104. For a translation of this inventory, see Core, supra note 54, at 22. 105. Resancement General des Habitants, Voyageurs, Femmes. En.fans, Esclaves, Clzevaus, Beufs, Vaclzes, Coclzons du Foste des Akansas, 1749. Lo. 200, Huntington Library, San Marino, CA. 106. On the Arkansas Vaugines, see Core, T!ze Vaugine Arkansas Connection, 20 GRAND PRAIRIE HISTORICAL SOCIETY BULLETIN 6 (1978). 107. Faye, supra note 6, at 709. 420 UALR LAW JOURNAL [Vol. 6:391 that river being the asylum of the most wicked persons, without doubt, in all the Indies." 108 On another occasion, De Mezieres singled out as a particularly heinous offender an Arkansas denizen nicknamed Brindamur, a man "of gigantic frame and extraordinary strength." Brindamur, De Mezieres complained, "has made himself a petty king over those brigands and highwaymen, who, with contempt for law and subordination with equal insult to Christians, and the shame of the very heathen, up to now have maintained themselves on that river." 109 He had been resident on the Arkansas for a long time, as his name appears in the census of 1749. Interestingly, it is placed at the very head of a considerable list of "the voyageurs who have remained up the rivers despite the orders given them." 110 All persons hunting on the rivers were supposed to return every year as passports were not issued for longer periods. But there were large numbers of hunters who lived for twenty years or more in their camps without ever reporting to the Post. They constituted a large proportion, indeed sometimes a majority, of the European population in Arkansas during the French period. The 17 49 census, for instance, lists a habitant population of only thirty-one, including the commandant and his wife. But there were forty hunters on the Arkansas River whose passports had expired, and nine on the White and St. Francis Rivers. Sixteen hunters were said to be at the Post being outfitted to return to the hunt. Brindamur, the bandit King, was murdered by one of his men after the end of the French period, "though tardily" De Mezieres reckoned, and "by divine justice."111 In the Spanish period an effort was made to rid the river of these malefactors. VII Since no records of litigation initiated at the Arkansas during the French period have survived, if indeed any were ever kept, very little can be said directly on how lawsuits were conducted there. However, in 1747 Francois Jahan initiated a suit in the Superior Council in New Orleans against one Clermont, a resident of Arkansas Post, claiming damages for the conversion of a cask of rum at Arkansas. 112 The Superior Council, as we have shown, had jurisdic- 108. 1 ATHANASE DE MEZIERES AND THE LOUISIANA-TEXAS FRONTIER, 1768-1780 166 (H. Bolton ed., 1914). 109. Id. at 168-69. 110. Resancement, supra note 105. 111. t\. BOLTON, supra note 108, at 167. 112. Index lo the Records of the Superior Court of Louisiana, 17 LA. HIST. Q. 569 (1934). 1983] COLONIAL LEGAL SYSTEM 421 tion throughout Louisiana, and this case reveals how it was exercised against a defendant in the hinterlands. The summons was served on the Attorney General of Louisiana; thus, as Henry Dart pointed out, "it would seem . . . that a resident of the Post of Arkansas could be sued in New Orleans by serving the citation on the Procureur [Attorney] General."113 How the case would have, in the ordinary instance, proceeded from there is difficult to say. Probably the Arkansas commandant would have been asked to act as a master to gather facts and to report to the Superior Council. But it seems that the commandant had already ruled independently on the matter. Commandant de Monbharvaux's statement on this case, which is entered in the record a'few days after the suit was initiated, indicates that he had held a hearing on the matter at the Arkansas, had taken testimony as to the rum, and had "sentenced Clermont to pay for it."114 Apparently he had kept no record of the proceeding, as none was offered: The good lieutenant bore his own record. It is interesting to note, however, that this case was evidently not brought to enforce the commandant's judgment but was an independent action. How did the justice provided by the Post commandant during the French period measure up? In the absence of litigation records, this is the hardest kind of question to answer. We know, however, that whatever jurisdiction was exerciseable by the commandant, he acted alone, without official advisors and without, of course, a jury. To say that rule is autocratic is not to say
Summary GWAS and allele frequency data are publicly available at https://www.ebi.ac.uk/gwas/downloads/summary-statistics. The combined UG2G+AGV imputation panel is available for imputation from the Haplotype Reference Consortium:http://www.haplotype-reference-consortium.org/participating-cohorts. All individual level data, phenotype, genotype and sequence data are available under managed access to researchers. Requests for access to the phenotypic data will be granted for all research consistent with the consent provided by participants. This would include any research in the context of health and disease, that does not involve identifying the participants in any way. The UMIC committees are responsible for curation, storage, and sharing of phenotypic and genetic data under managed access. The array and low and high depth sequence data have been deposited at the European Genomephenome Archive (EGA, http://www.ebi.ac.uk/ega/, accession numbers EGAS00001001558/EGAD00010000965, EGAS00001000545/EGAD00001001639 and EGAS00001000545/EGAD00001005346 respectively). Requests for access to data may be directed to segun.fatumo@mrcuganda.org. While data cannot be released on public databases as this would conflict with the study protocol and participant consent under which data were collected, we aim to facilitate data access for all bona fide researchers. Applications are reviewed by an independent data access committee (DAC) and access is granted if the request is consistent with the consent provided by participants within two weeks of submission. The data producers may be consulted by the DAC to evaluate potential ethical conflicts. Requestors also sign an agreement which governs the terms on which access to data is granted. ; The file associated with this record is under embargo until 12 months after publication, in accordance with the publisher's self-archiving policy. The full text may be available through the publisher links provided above. ; Genomic studies in African populations provide unique opportunities to understand disease aetiology, human diversity and population history. In the largest study of its kind, comprising genome-wide data from 6,400 individuals, and whole-genome sequences from 1,978 individuals from rural Uganda, we find evidence of geographically-correlated fine-scale population substructure. Historically, the ancestry of modern Ugandans is best represented by a mixture of ancient East African pastoralists. We demonstrate the value of the largest sequence panel from Africa to date as an imputation resource. Examining 34 cardiometabolic traits, we show systematic differences in trait heritability between European and African populations, probably reflecting the differential impact of genes and environment. In a multi-trait pan-African GWAS of up to 14,126 individuals, we identify novel loci associated with anthropometric, haematological, lipid and glycemic traits. We find that several functionally important signals are driven by Africa-specific variants, highlighting the value of studying diverse populations across the region. ; This work was funded by the Wellcome Trust, The Wellcome Sanger Institute (WT098051), the UK Medical Research Council (G0901213-92157, G0801566, and MR/K013491/1), and the Medical Research Council/Uganda Virus Research Institute Uganda Research Unit on AIDS core funding. This work was funded in part by IAVI with the generous support of the United States Agency for International Development (USAID) and other donors. The full list of IAVI donors is available at http://www.iavi.org. The contents of this manuscript are the responsibility of IAVI and co-authors and do not necessarily reflect the views of USAID or the US Government. DG is funded by a UKRI HDRUK Innovation Fellowship (reference number MR/S003711/1). We thank the African Partnership for Chronic Disease Research (APCDR) for providing a network to support this study as well as a repository for deposition of curated data. We thank all study participants who contributed to this study. We also acknowledge the National Institute for Health Research Cambridge Biomedical Research Centre. The authors wish to acknowledge the use of The Uganda Medical Informatics Centre (UMIC) compute cluster. Computational support from UMIC was made possible through funding from the Medical Research Council (MC_EX_MR/L016273/1). We acknowledge the Sanger core pipeline teams for their help with sequencing and mapping the whole genome sequence data. The authors acknowledge with thanks the participants in the AADM project, their families and their physicians. The study was supported in part by the Intramural Research Program of the National Institutes of Health in the Center for Research on Genomics and Global Health (CRGGH). The CRGGH is supported by the National Human Genome Research Institute (NHGRI), the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), the Center for Information Technology, and the Office of the Director at the National Institutes of Health (1ZIAHG200362). NS's research is supported by the Wellcome Trust (Grant Codes WT098051 and WT091310), the EU FP7 (EPIGENESYS Grant Code 257082 and BLUEPRINT Grant Code HEALTH-F5-2011-282510) and the National Institute for Health Research Blood and Transplant Research Unit (NIHR BTRU) in Donor Health and Genomics at the University of Cambridge in partnership with NHS Blood and Transplant (NHSBT). The views expressed are those of the author(s) and not necessarily those of the NHS, the NIHR, the Department of Health or NHSBT. DG was funded by the MRC (MR/S003711/1). AJM was funded by the Wellcome Trust (WT106289). We acknowledge use of summary data from the Global Lipids Genomics Consortium (GLGC). (Consortium, 2013) We acknowledge the H3Africa Bioinformatics Network (H3ABioNet) Node, National Biotechnology Development Agency (NABDA), Federal Ministry of Science and Technology (FMST) Abuja, Nigeria for funding SF for his post-doctoral research. DNC wishes to acknowledge the financial support of Qiagen Inc through a License Agreement with Cardiff University. We also acknowledge the 1000 Genomes Project, UK10K, Simon's Foundation Genome Diversity Project and African Genome Variation Project (AGVP) for providing data resources that were used to contextualise the UG2G data. The GATK3 program was made available through the generosity of Medical and Population Genetics program at the Broad Institute, Inc. The research was partially supported by the NIHR Leicester Biomedical Research Centre; the views expressed are those of the author(s) and not necessarily those of the NHS, the NIHR or the Department of Health. L.V. Wain holds a GSK/British Lung Foundation Chair in Respiratory Research. ; Peer-reviewed ; Post-print
Abstract Taxation and the Formation of the Late Roman Social ContractBy Patrick E. ClarkDoctor of Philosophy in HistoryUniversity of California, BerkeleyProfessor Carlos Noreña, Chair"Taxation and the Formation of the Late Roman Social Contract" offers a novel interpretation of the function of taxation in late Roman society. I argue that the tax policies introduced by Diocletian at the end of the 3rd century facilitated the negotiation of a social contract between the rulers and the ruled that stipulated that all Roman citizens had rights under and responsibilities to the Roman Empire. The late Roman social contract contrasted with the social contract of the Principate, which sought to reduce the responsibilities on the emperor's political coalition while also enabling this group to enjoy more rights under the empire. Taxation was, on the one hand, one of the citizens' responsibilities, whose specific provisions, rates, and institutions were subject to intense negotiation between the ruler and the ruled. On the other hand, taxation functioned as a forum where state actors and taxpayers interacted, engaged in performances of the "public transcript", and negotiated with each other, and as a medium for communication that enabled the emperor to give real world realization to his values, ideals, and normative conceptions of citizenship. Thus instead of interpreting late Roman sources for taxation individually as accurate statements of the nature of late Roman taxation, I situate them in a larger discursive context that led to a broad consensus on the social contract and the nature of citizenship.The first chapter builds on recent work by Walter Scheidel, Gilles Bransbourg, Andrew Monson, and Carlos Noreña and demonstrates that tax policies under the Principate worked to reinforce and make visible the social and legal hierarchy that underpinned the social contract of the Principate. Tax expenditures by the state on senators, soldiers, the local elite, and the city of Rome created financial incentives for these groups to support the Roman monarchy. Chapter 1 also serves as a point of contrast for chapters 2 and 3. In chapter 2 I reconstruct Diocletian's vision for state-society relations from his imperial constitutions, arguing in particular that Diocletian continued a 3rd century development in which all Roman citizens were expected to be concerned with the survival of the emperor and empire. In addition to requiring his subjects to demonstrate their commitment to the empire through empire-wide displays of traditional religious devotion, as 3rd century emperors had, Diocletian proliferated obligations on certain occupations, decurions, tenant farmers, and, most importantly, taxpayers. At the same time, Diocletian insisted that his policies would be fair, rational, useful, and legal. Chapter 3 examines Diocletian's tax policies in greater detail and concludes that by and large they reflected the vision for state-society relations outlined in chapter 2. Taxation under Diocletian would be fair, rational, useful, and legal, and, most importantly, it would locate individual taxpayers in a universal hierarchy of fiscal responsibility that defined each taxpayer as owing a discrete portion of the state's budgetary requirements. Chapter 4 then explores the impact that these tax policies, as a powerful medium for communicating imperial ideology, had on taxpayers' conception of the empire and their place in it. My close reading of 477 Egyptian papyri, including many valuable petitions, demonstrates that petitioners asserted their acceptance of the legitimacy of their fiscal burdens, only if those burdens corresponded to the petitioners' census documents. This acceptance had two main consequences. First, it confirmed the legitimacy of the imperial ideology, outlined in chapters 2 and 3, that in part structured fiscalité under Diocletian. Second, petitioners' payment of their taxes enabled them to argue that they were enthusiastic members of the imperial community who deserved the state's legal protection. This second claim transformed the label "taxpayer" into a positive moral quality of an ideal citizen. In this way, petitioners tried to use their payment of taxes to secure for themselves legal rights in the social contract.If the observations from chapter 4 represent a constructive engagement with and acceptance of Diocletian's ideology and policies, chapter 5 is an example of the polemic criticism the emperor's policies could provoke. In his Divine Institutes and On the Deaths of the Persecutors Lactantius argues that the Tetrarch's persecution of Christian, which deprived them of the state's legal protection, revealed the ideology and institutional basis of the Tetrarchy to be unjust. On closer examination, other Tetrarchic policies appear unjust as well. Tapping into a deeper Graeco-Roman philosophical tradition, Lactantius demonstrates that Tetrarchic tax policies had a deleterious effect on social relations in the Roman Empire. Contrary to justice, taxation introduced inequality, war, violence, and discord. It would be more just, Lactantius maintained, for Romans to give charity instead, because charity would reduce inequalities and strengthen the bonds of Roman society. Rather than being the outpourings of righteous indignation, however, Lactantius' polemics should be read, like the petitions from chapter 4, as a contribution to the negotiation of the late Roman social contract.My observation that the communicative nature of 4th century tax policies facilitated the negotiation of a social contract represents an advancement in scholarly thinking about taxation in the later Roman Empire because it reveals the ideological and ethical pronouncements that tax policies and statements about taxation could make. Taxation enabled the emperor and his subjects to communicate their conception of state-society relations and to critique what they saw as flaws in others' conceptions. This observation also has analytical value outside the narrow temporal bounds of dissertation. For example, when viewed through the lens of my dissertation, the emperor Julian's reduction of the Gallic provinces' tax rate should be seen as his attempt to communicate his commitment to a just social contract in advance of his planned revolt against Constantius II. Julian's tax policies signaled to the whole empire that he intended to be a prototypical good emperor. Herein lies the main take-away from this dissertation: when emperors, intellectuals, and petitioners mentioned taxation, they were talking about much more than taxation; they were making normative claims about how best to organize their society.
Celebrity Humanitarianism: The Ideology of Global Charity.By ILAN KAPOOR. Routledge, 2013. $44.95Reviewed by Sonja Killoran-McKibbinThe back cover promised a "hyper-critical porpoise with a purpose," and though I wasn't entirely sure what to expect, I was not disappointed by this book. In Celebrity Humanitarianism: The Ideology of Global Charity, Ilan Kapoor cleverly and humorously attacks the celebrity charity peddlers, the "coffee-pusher philanthropists," and the NGO superstars who dominate our conception of international aid. Using a Žižekian framework to carry out a refreshing ideology critique, Kapoor prods the assumptions implicit within celebrity humanitarianism to reveal its ideological basis and the underlying interests such actions serve. While Kapoor focuses on only a handful of notorious celebrity humanitarians, he insists that the individual celebrities in his book are merely some of the more colourful examples of a broader trend. Most importantly, Kapoor avoids the trite and banal and refuses to return to the all too easy suggestion that something is better than nothing. Instead, Kapoor's text skilfully addresses the role of celebrity charities by systematically deconstructing the manner in which they justify and support the very inequities that they purport to challenge.By asking "Do they know that it's Christmas?" almost thirty years ago, Band Aid set off the growing role of celebrities as an authoritative voice on global poverty. Yet the issue is under-discussed and rarely critiqued, making Kapoor's cutting and insightful analysis long overdue. The book begins by exploring the hyper-celebrities who claim to speak for, witness, or represent poverty. Using Bono, Bob Geldof, Madonna, and Angelina Jolie as examples, Kapoor demonstrates how such celebrity charity work is used for individual profit and to mask the root causes of inequality. By offering the opportunity to do good through consumerism, such work feeds into the capitalism's elusive promise of jouissance—or the eternal promise of enjoyment. Celebrity humanitarianism showcases the excessive lifestyles of celebrities, supporting their individual brand but also glorifying and marketing their excessive lifestyles as the ultimate promise of capitalism. Celebrities in this way are used to embody a justification of the current economic system at the same time as they claim to work to change it. Support for the decadence of the rich glorifies the inequality on which capitalism is based and obfuscates the very conditions that create poverty. Moreover, these stars act as witnesses and authorities on the poverty of the third world and situate third world subjects as victims, perpetuating the issues of inclusion and exclusion within such actions.Next to come under Kapoor's gaze are the private foundations established and maintained by billionaires, such as the Bill and Melinda Gates Foundation and George Soros' Open Society Institute. Calling such endeavours "decaf capitalism," Kapoor argues that they allow people to continue with business as usual and that "it is charity that helps decaffeinate capitalism. It masks and purifies corporate ills, acting as a countermeasure to socioeconomic exploitation." Foundations highlight the benevolence of corporate moguls and effectively hide the mechanisms through which they obtain such wealth. These acts keep people engaged and complicit with the corporate order and effectively depoliticize systems of inequality while undermining public mechanisms to improve social conditions and situating private initiatives as appropriate solutions.Finally, the book addresses those non-governmental organizations that have situated themselves as types of celebrities in their own right. From Médecins Sans Frontières (MSF) to Oxfam, such charities not only seek celebrity endorsements but have also developed their own personae and brand. Kapoor suggests that such charities, in many ways, represent an element of commodity fetishism in our late capitalist culture—distancing ourselves from elements of poverty while at the same time providing us with an outlet for our anxieties about global injustice. By constructing a "permanent emergency regime" these charities thrive on the spectacle of disaster and demand immediate action. They cultivate an anti-theoretical activism by suggesting that crisis makes immediate action essential—and unquestionably benign — leaving no time for analysis and portraying such reflection as inactive and necessarily detrimental. In this fashion such organizations encourage us to allow them to do the work for us, effectively delegating our beliefs to commodities. The absence of theorizing and the urgency of action effectively glosses over the manner in which the forms of new humanitarianism that such charities engage in are neoimperial endeavours. The complicity of NGOs in "humanitarian war" is made invisible by the parade of spectacularized emergencies.While Kapoor points to some of the ways the celebrity charity regime might be transformed, he is also quite clear that these reformist proposals are limited. They result in nothing more than a compromise with the system and do not address the depoliticizing tendencies of such international action. Drawing again on Žižek, Kapoor calls for an uncompromising politics that demands revolutionary change. While I welcome Kapoor's call for a revolutionary overthrow of the current global order and his rejection of sanctioned resistance, I must admit that I was left feeling somewhat unsatisfied by his insistence on revolutionary inaction. What of confronting antagonisms through unsanctioned resistance? While Kapoor advocates the imagining of new political possibilities that are distinct from inaction, as they ultimately must be followed by the material work for their creation, Kapoor deals with a lot in his last few pages, and perhaps that is part of the problem. While he urges the reader to see the opportunities in the contradictions it is difficult not to wish for more than a few pages to bring together his revolutionary proposal. Nonetheless, this could also be seen as Kapoor not letting his readers off the hook for their own complicity by pushing them to consider these tendencies beyond the bound pages. Overall Kapoor has crafted an engaging and entertaining text that deftly employs an all too familiar and visible phenomenon to bring to light the ideology embedded within it.~SONJA KILLORAN-MCKIBBIN is a PhD Candidate in the Faculty of Environmental Studies at York University. Her work explores the intersections of international aid and extractive industries.
학위논문(박사)--서울대학교 대학원 :공과대학 협동과정 기술경영·경제·정책전공,2020. 2. 황준석. ; 기술 변화와 혁신이 국가 경제 성장의 주요 원천으로 강조되는 한편, 혁신활동에 있어 지리적 공간의 중요성을 인식함에 따라 지역적 차원에서의 혁신과 성장에 대한 논의가 심화되고 있다. 이러한 지역 수준 관점의 상대적 이점에 따라 지역 혁신과 성장에 관한 이론이 발전해왔으며, 그에 상응하는 지역 혁신 및 성장정책이 설계 및 이행되어왔다. 하지만 지역 고유의 개별적인 특성과 혁신역량이 다양하고 이질적임에도 불구하고 이에 대한 깊은 논의는 부재한 채 동질적인(one-size-fits-all) 지역혁신 및 성장 정책이 적용되어 왔다. 따라서 본 연구는 진화적 및 시스템적 관점을 채택하여 서로 다른 수준의 혁신 잠재력을 지닌 지역들을 대상으로 각 지역의 학습 프로세스에 중점을 둔 지역 혁신 및 성장 패턴에 관하여 분석하고자 한다. 이러한 목적 하에서 본 논문은 기술변화 진화이론에서 제시하는 지식에 대한 접근과 효율적 사용을 가능케 하는 세가지 핵심 기능 영역인 새로운 지식의 흡수, 혁신의 확산, 그리고 새로운 지식의 창출, 이 세가지 단계에 주목하고자 한다. 이 주요 세 가지 기능에 초점을 맞춰, 세 가지의 세부 연구내용이 학위논문에 포함되었으며, 개별 세부 연구들은 서로 다른 지식 축적 수준과 다양성을 가진 지역들의 지역혁신체제의 형성과 발전과정에 대한 연구를 담고 있다. 우선 첫 번째 세부 연구에서는 기술력이 거의 없거나 전혀 없는 개발도상국의 지역에서 외부의 지식을 흡수하고 지역사회 차원에서 혁신을 촉발시키기 위해 적용할 수 있는 개념적 틀을 제안하였다. 이를 위해 개발도상국의 적정기술 사례에 풀뿌리 혁신(grassroots innovation) 이론의 개념을 적용하여 질적 사례연구를 수행하였다. 풀뿌리 혁신은 선진국에서만 논의되어온 개념으로, 지속가능성을 위한 사회적 또는 포용적 혁신을 추구하는 커뮤니티 수준의 상향식(bottom-up) 혁신이다. 본 연구는 이러한 풀뿌리 혁신과 개발도상국을 대상으로 하는 적정기술의 유사성 및 연결성을 체계적으로 제시하고, 그를 바탕으로 다섯 가지의 핵심 구성 요소들을 포함한 개념적 틀을 재정의 및 제시하였다. 사례 연구에 따르면 사회적 니치는 로컬 지식 전달 메커니즘이 발현될 수 있도록 하며 이는 지역사회가 더 효율적으로 기술을 사용하는 데에 중요한 역할을 하는 것으로 나타났다. 두 번째 세부 연구의 경우에는 한국의 시군 지역들의 혁신 및 성장 패턴을 규명하고자 하였다. 클러스터들의 경우 집적효과를 통해 더욱 높은 수준의 혁신과 성장을 촉진한다는 측면에서 지역혁신체제 내에서 큰 잠재적 역할을 지닌다. 그에 따라 많은 지역에서 클러스터 정책을 지역 혁신 및 성장정책 수단으로 활용해왔으며, 우리나라의 지방정부들 역시 클러스터 기반 정책을 활발히 추진 중에 있다. 그러나 우리나라의 클러스터 정책은 지역의 상황과 수요에 대한 객관적인 분석이 미비한 채 과잉 공급되어 실효성 없는 정책으로 평가 받고 있다. 따라서 두 번째 세부 연구에서는 사회경제적 요소들과 지식 역량 관련 요소들을 함께 포함하여 시스템적 관점에서 클러스터에 따른 지역 경제성장 효과를 파악하고자 하였다. 이를 위해 클러스터가 존재하는 한국의 모든 시군 지역을 대상으로 PCA 분석과 패널 분석을 시행하였다. 분석 결과 클러스터를 통해 지역 내 혁신과 성장을 촉진하기 위해서는 사회경제적 환경이 선행되어야 함을 확인하였다. 그리고 우리나라 지역에서는 R&D 역량 제고에 따른 성장효과가 클러스터 효과보다 더 크고 장기적으로 영향을 미침에 따라, 클러스터 기반 정책이 당초 예상했던 것보다 낮은 성과를 가져올 수 있음을 제시하였다. 더불어, 지역 내 활용 가능한 인적자원, 교육 시스템, 연구개발 활동의 질, 클러스터의 집약도 등의 요소들이 한국의 지역 성장을 위해 필수적으로 고려되어야 할 제도적 부문인 것으로 확인하였다. 세 번째 세부 연구는 지식을 새로 재조합하는 능력이 지속가능하고 장기적인 성장을 위한 동인으로 평가됨에 따라, 유럽의 지역들을 대상으로 지역의 지식 재조합 역량이 지역 생산성에 미치는 영향을 파악하고자 하였다. 더 구체적으로, 본 연구는 지식 혹은 기술 재조합의 유형을 탐색(exploration) 유형과 활용(exploitation) 유형으로 나누어 두 가지 유형이 생산성에 미치는 영향을 비교분석 하고자 하였다. 이를 위해 EU NUTS 2 레벨 지역들을 대상으로 특허 데이터를 활용한 기술 구분간 결합 매트릭스의 생성으로 지식 축적 패턴을 분석하고, 확률적 프론티어 모델을 통해 기술 효율성을 계산하였다. 그리고 경제 규모, 지식 축적 정도, 시기 효과 등을 조절하여 지역의 지식 재조합 유형과 기술 효율성간의 관계를 회귀하였다. 분석 결과 활용적 재조합은 별다른 영향을 주지 않는 반면, 탐색적 재조합은 지역의 생산성 향상에 긍정적이고 유의미한 영향을 미치는 것으로 나타났다. 위의 논의를 바탕으로 본 학위논문은 서로 다른 지역 수준에 따른 정책적 시사점을 제공할 것으로 기대한다. 첫째, 기술력이 낮은 후발 지역에서는 풀뿌리 혁신의 개념적 틀을 적용하여 외부 지식, 기술 또는 혁신을 흡수하여 지역의 요구에 대응할 수 있는 기반을 형성하여야 한다. 둘째, 지역 내 지식확산이 효과적으로 이루어지기 위해서는 바람직한 사회경제적 환경이 선행되어야 하고, R&D 역량에 대한 투자가 지속적으로 함께 이루어져야 한다. 셋째, 지식 축적 정도와 지식의 다양성 수준이 높은 지역에서는 새로운 지식의 탐색적 비용과 불확실성이 높음에도 불구하고 새로운 지식 재조합의 역량을 키워야 할 것이다. ; While technological change and innovation have been treated as key to national economic growth, attention to innovation and development at a regional level has grown from the recognition of the importance of geographical space in the innovation process. Theories on regional innovation and growth have been developed under the advantages of regional examination, and regional innovation policies were designed and implemented accordingly. However, the one-size-fits-all approach to regional policies remains troublesome as regions differ widely in terms of their intrinsic characteristics and innovation capabilities. Based on these concerns, this thesis adopts an evolutionary and systematic integrated view to investigate regional innovation and growth patterns focusing on learning processes in regions with different levels of innovation potential. This thesis adopts three main functional dimensions of access to and efficient use of knowledge in evolutionary theories; that is, absorption of new knowledge, diffusion of innovations, and generation of new knowledge. In accordance with the three dimensions, three studies are included with analyses of regional innovation and development strategies for regions with different levels of knowledge accumulation and diversity. The first study proposes a framework for the initiation of community-level innovation in a developing country where technological capabilities are few or non-existent, causing mere adaption to external innovations. With a qualitative analysis of an appropriate technology case, the study adopts concepts from grassroots innovation. Grassroots innovation is a community-level bottom-up innovation that has been discussed only in developed countries as a means of socially inclusive innovation for sustainability. However, this study identifies the links between appropriate technology and grassroots innovation and redefines a framework with core constructs: context, driving force, niche, organizational form, and resource base. The case study shows that a social niche plays a significant role in improving the use of technology by creating a local knowledge transfer mechanism through social learning. The second study investigates regional innovation and growth patterns of regions with clusters in Korea. Clusters have been popular among regional policy makers for promoting greater innovation and growth. In this regard, Korean local governments have also pursued a cluster-based policy for regional development. However, the problem is that clusters are oversupplied without an objective examination of regional conditions and demands, and the existence of clusters does not necessarily secure regional networks or economic growth. Therefore, the study aims to examine the effects of clustering on regional economic performance along with socioeconomic factors and knowledge capacity factors from a systematic perspective. Principal component analysis and panel regression methods are used to analyze Korean regions with clusters. The results indicate that favorable socioeconomic contexts are prerequisites to foster innovation and growth by clusters. In addition, a cluster-based policy may have a smaller effect than expected because R&D capacity has a stronger and longer effect on economic performance. Lastly, specific factors such as a pool of labor, education systems, quality of R&D activities, and agglomeration density of clusters are found to be critical to regional growth in regions in Korea. The last study focuses on regional capacity for knowledge recombination and its impact on regional productivity in European regions, as novel recombination is assessed to be a new driver for sustainable and long-term regional growth. Consequently, the study specifies regional capacity in technological recombination into exploration and exploitation and compare their effects on regional productivity. For the analysis, a knowledge space is constructed using technology class co-occurrence matrices with patent data, and technical efficiencies are calculated using a stochastic frontier model from socioeconomic data of EU NUTS 2 level regions. The relationship of regional recombination types and technical efficiencies is then regressed, controlling for economy scale, knowledge stock, and periodic effects. The results demonstrate that explorative recombination has a positive and significant influence on productivity gains while exploitative activity has no influence. Overall, the thesis provides several policy implications for regions from the evolutionary and systematic perspectives. First, in lagging regions with low technological capabilities, the five-construct framework drawn from grassroots innovation can form a basis for absorption of external knowledge, technology, or innovation to adapt to local needs. Second, for intra-regional knowledge spillovers to be effective in intermediate regions, creating a favorable socioeconomic environment should take precedence. Moreover, consistent attention to investment in R&D capacity is required. Third, explorative new knowledge recombination is recommended in regions with a high level of knowledge accumulation and diversity despite its high cost and attendant uncertainties. ; Chapter 1. Introduction 1 1.1 Research background 1 1.2 Research objectives 6 1.3 Research outline 7 Chapter 2. Literature Review 10 2.1 Regional innovation and development 10 2.1.1 The need for regional analysis 10 2.1.2 Regional economic development theories 14 2.2 Evolutionary economic geography 17 2.3 Regional innovation systems 22 2.4 Contribution of the study 26 Chapter 3. Grassroots innovation for regional development in developing countries: A qualitative study on appropriate technology 30 3.1 Introduction 30 3.2 Literature review 32 3.2.1 Appropriate technology 32 3.2.2 Grassroots innovation 34 3.2.3 Bridging appropriate technology and grassroots innovation 37 3.3 Methodology and data 41 3.3.1 Framework: Common constructs 41 3.3.2 Methodology and data 46 3.4 Case study 49 3.5 Discussion 57 3.6 Conclusion 61 Chapter 4. Illusions of clustering: Investigating regional innovation and growth patterns in Korea from a systematic perspective 63 4.1 Introduction 63 4.2 Literature review 65 4.2.1 Regions, innovation, and growth 65 4.2.2 Clusters and regional growth 67 4.3 Methodology 72 4.4 Data 82 4.5 Results 87 4.6 Discussion 92 4.6.1 Summary of results and policy implications 92 4.6.2 Other variables 94 4.7 Conclusion 98 Chapter 5. The effects of regional capacity in knowledge recombination on productivity gains in Europe 101 5.1 Introduction 101 5.2 Literature review 102 5.3 Methodology and data 106 5.3.1 Methods 106 5.3.2 Data 111 5.4 Results 112 5.4.1 Regional recombination capacity 112 5.4.2 Regional productivity 114 5.4.3 Regional recombination and productivity 115 5.5 Discussion and conclusion 118 Chapter 6. Conclusion 121 6.1 Overall summary 121 6.2 Policy implications and contributions 125 6.3 Limitations and future research 127 Bibliography 130 Appendix 1: Sources for case study 154 Appendix 2: Model test statistics 157 Appendix 3: Additional analysis with patent variable 159 Appendix 4: Random-effects parameters in random coefficient models 161 Abstract (Korean) 163 ; Doctor
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Notable among dissenters from NATO's proxy war with Russia in Ukraine have been former Western ambassadors such as Jack Matlock and Chas Freeman in the United States, Britain's Tony Brenton, and Tony Kevin in Australia — dissident voices that are needed more than ever amid fevered lobbying for yet further escalation of the conflict.A very welcome addition to their ranks is Ian Proud, economic counsellor in the British Embassy in Moscow from 2014-2019. A highly experienced diplomat, Proud served in Thailand and Afghanistan, organized the G8 summit in Belfast in 2013 and, in 2022, retired from the Foreign Office as Vice Principal of its International Academy — the body charged with the foreign-language training of British diplomats. Perhaps his finest hour was the part he played in the smooth running of the football World Cup in Russia in 2018, when tens of thousands of English soccer fans descended on Moscow and other match venues.Unlike the vast majority of his colleagues in Moscow, Proud took the trouble to learn Russian and to travel the country far and wide, meeting officials, politicians, academics, students and ordinary people.A self-professed "realist," Proud believes the core purpose of diplomacy is to manage relations between states and to prevent conflict. In Moscow, according to his memoir published late last year, "A Misfit in Moscow: How British Diplomacy in Russia Failed, 2014-2019, he was appalled by the "utmost folly" of attempting to resolve "disputes with Russia through isolation and cancellation."An admirer of Margaret Thatcher, Proud is no Russophile or starry-eyed Putin admirer. He was perfectly willing to "roger" the Russians if it served a useful purpose: when the Skripals were poisoned in 2018 he hatched a plan to collapse Russia's diplomatic representation in the UK. Many Russian diplomats were expelled from London and other Western capitals but, thankfully, there were no takers for Proud's proposed escalation of the tit-for-tat.However, in general, Proud advocates engagement and the search for mutual understanding as a far more effective policy. While some Western powers — France, Germany and the United States — continued to make such efforts during Proud's time in Moscow, the British government opted for "megaphone diplomacy" and to talking with other countries about Russia rather than to the Russians themselves. "You can't be friends with everyone," comments Proud in "A Misfit in Moscow", "but real diplomacy involves talking to those you disagree with the most."After the eruption of the Ukraine crisis in 2014. London's mantra was that Russia had to be punished for its transgressions and there could be "no return to business as usual." Though, as Proud recalls, there was one British Foreign Secretary who favoured positive engagement with the Russians – Boris Johnson.As the economics attaché, Proud had responsibility for monitoring the impact of Western sanctions on Russia. For the Brits, those sanctions soon became an end in themselves rather than a policy tool. Proud 's economically illiterate colleagues did not want to know when he warned sanctions had inspired a successful Russian drive to economic nationalism and self-sufficiency. Especially important was the way Moscow weathered the monetary instability caused by a combination of Western sanctions and reduced energy prices. By the time Putin invaded Ukraine in February 2022, Moscow was well able to contain the West's tawdry efforts to destabilize the ruble and collapse the Russian economy.The most spectacular example of the British blundering concerned implementation of the Minsk agreements. This was the deal that curtailed (but did not end) the civil war between the Kyiv government and the pro-Russia Donbass separatists. Brokered by France and Germany, the agreed compromise was that Ukraine would regain sovereign control of the Donbass in return for granting it constitutionally guaranteed regional autonomy. In effect, the agreement would get Russia out of the Donbass but also give the rebels a veto on the country's membership of NATO — something Ukraine's ultra-nationalists were never going to accept.As Proud relates, UK leaders in London had contrived to exclude themselves from the negotiations that led to Minsk, which meant the British played little or no role in the various efforts to find ways to implement the agreements. The one major British contribution to the sorry tale of the failed Minsk agreements was to persuade the EU's European Council to agree that sanctions against Russia would not be lifted until Minsk had been fully implemented. Kyiv was delighted, and was further incentivized to stymie the implementation of Minsk as a means of locking in Western sanctions against Russia.Proud claims that Moscow had to real interest in implementing Minsk either, but it seems to this reviewer that the public record shows Russia was probably the only party to those agreements acting in good faith. Certainly, in run-up to the Russian invasion, Putin was incessant in his insistence that implementation of Minsk was the only way to resolve the Ukrainian crisis peacefully.Proud's book was vetted by the Foreign Office prior to publication but the resultant cuts do not detract from its value as both a memoir and a critique of British policy towards Russia.Since publication the author has been highly active on alternative media platforms as a critic of the West's role in the Ukraine war. As he says in the book, if the West is unwilling to itself fight Russia, it needs to push for a ceasefire and help Ukraine to negotiate a just peace.It's a great pity more of his diplomatic colleagues didn't, and still don't, see it that way, too.
