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Martin Luther, music, and the Seven Liberal Arts

By Andreas Loewe

It was the German reformer Martin Luther who famously said that “music was next to theology.” Why did Luther claim that music was “next” to theology, and what did he mean? In the past, scholars have explained that music had a unique capacity to touch the human heart in a way that the spoken word, or other sounds may not do. That it had a capacity to move us at a profound emotional and intellectual level. That it had the capacity to combine words, melody and harmony, giving it an added quality by enabling us to sing.

Singing certainly makes music a versatile instrument to convey meaning in ways that touches people. As a keen singer, lute player, and amateur composer, Luther did indeed make good use of the ability of music to write stirring hymns that set out the principal beliefs of his reformation. But that still only makes music a vehicle to convey theological thought, much in the same way it can be used to convey any other sets of words. Indeed, the Master Singers’ chart-topping recordings from the mid-1960s of the UK Highway Code or the Weather Forecast, to Anglican Chant are outstanding examples of setting theologically meaningless texts to music.

It’s clearly not the fact that music is an instrument to convey words that caused Luther to claim that music was “next” to theology. Rather, it was Martin Luther’s belief that music stood at the pinnacle of the Seven Liberal Arts that led to his famous statement. At the time at which Luther himself was a student, the Seven Liberal Arts were the basis of all philosophical learning.

Martin Luther by Lucas Cranach der Ältere

The Seven fell into two distinctive parts. The Trivial (or three-fold) Arts taught the mechanics of language and thought through Grammar, Rhetoric, and Logic. The Quadrivial (or four-fold) Arts taught the mechanics of mathematics and physics, through the study of Arithmetic, Geometry, Astrology, and Music. Together, they formed the university undergraduate curriculum for much of the Renaissance and Early Modern periods.

Music held a central position between the Trivial and Quadrivial arts. In fact it was to be found in all seven arts, since it combined elements of speech, grammar, and logic, with arithmetic and geometry. Through the soundless “music of the spheres,” that so fascinated medieval music theorists, it even had a place in astrology. Music, then, was the lynch-pin of philosophical learning; the bridge between the mechanics of language and the mechanics of the universe. For Luther, it undoubtedly stood at the pinnacle of all Liberal Arts.

Once undergraduates had mastered the Seven Liberal Arts, they were able to proceed to a vocational degree at one of the higher faculties: medicine, law, or theology. Among the three higher degrees, it was theology—the science of God—that ranked highest. Taken together, all the arts and higher sciences formed an awe-inspiring reflection of the human attempt to make sense of the universe and its creation: a mountain-range of learning. The fact that for Luther music stood at the peak of the Liberal Arts means that it was, indeed, “next” to theology; if theology was the Everest in that mountain range of the arts and sciences, then music was K2, the second-highest peak.

The fact that Luther himself was an accomplished musician makes it attractive to think of Luther as a practitioner. That is probably why most reflections on Luther and music centre on his use of music, his vision of singing as a central tool for community building, education and religious reform, rather than on his music theory. But his encomium on music as ‘next’ to theology makes sense only when viewed from the point of view of Luther the philosopher and theorist of music; the renaissance man who recognized music as the second-highest peak in the range of learning, yet who also happened to inspire and enthuse generations of music makers by his own love, esteem, and practise of this noble science.

The Very Revd Dr Andreas Loewe is Dean of Melbourne and a Fellow and Lecturer in music at the Melbourne Conservatorium of music, the University of Melbourne. He has published widely on church and music history, and is author of “‘Musica est optimum’: Martin Luther’s Theory of Music,” published in Music & Letters. His latest book, a theological commentary on Bach’s St. John Passion, will be published in spring 2014.

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Image: Martin Luther by Lucas Cranach der Ältere. Public Domain via Wikimedia Commons.

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Frank Close on the Higgs boson

In 2013, the Nobel Prize for Physics was awarded jointly to François Englert and Peter W. Higgs for their work on what is now commonly known as the Higgs field and the Higgs boson. The existence of this fundamental particle, responsible for the creation of mass, was confirmed by the ATLAS and CMS experiments at CERN’s Large Hadron Collider in 2012. The journey between the initial proposals of the theory in the 1960s and the discovery of the particle itself has been fraught, not only with technical challenges, but with fierce debates within the scientific community.

Below, you can listen to Frank Close, author of The Infinity Puzzle: The personalities, politics, and extraordinary science behind the Higgs boson, discuss the stories behind this work in quantum physics. The podcast is recorded by the Oxfordshire Branch of the British Science Association who produce regular Oxford SciBar podcasts.

Listen to podcast:

Or you can download it directly from Oxford SciBar podcasts.

Frank Close is Professor of Theoretical Physics at Oxford University and former head of the Rutherford Appleton Laboratory. During his career he has worked closely with CERN, home of the LHC. He is a well-established science writer, and his recent short books for The Void and Antimatter – have been highly successful. In 2013 Professor Close was awarded the Royal Society Michael Faraday Prize for communicating science. He is the author of The Infinity Puzzle, Particle Physics, Nothing, Antimatter, and Neutrino.

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Cocktail party conversation from Oxford

Compiled by Jonathan Kroberger

Our publicity department spends all week long talking about our books and occasionally they find it hard to stop talking about them when out and about. Here on the blog we’re going to be featuring some of the facts they can be heard recounting outside of the office from some of our current books.

Marilyn Monroe, The Prince and the Showgirl. Public Domain via Wikimedia Commons.

From Nothing Like a Dame: Conversations with the Great Women of Musical Theater by Eddie Shapiro:

Marilyn Monroe sat in the front row of every performance of Gentlemen Prefer Blondes for a month while Carol Channing was playing the lead, to prepare for the film version. Carol Channing said that the conductor of the show had never seen “anything that beautiful” and couldn’t keep his eyes of Marilyn, often to the detriment of the orchestra.

–Lauren Hill, Publicity Assistant

From America Walks into a Bar: A Spirited History of Taverns and Saloons, Speakeasies and Grog Shops by Christine Sismondo:

The Anti-Saloon League, an organization funded by John D. Rockefeller in the 1890s, published 250 million pages of anti-alcohol propaganda per month. In those pages, they used the following names to describe saloons and bars:

The storm center of crime
The devil’s headquarters on earth
The school-master of a broken Decalogue
The defiler of youth
The enemy of the home
The foe of peace
The deceiver of nations
The beast of sensuality
The past master of intrigue
The vagabond of poverty
The social vulture
The rendezvous of demagogues
The enlisting office of sin
The serpent of Eden
A ponderous second edition of hell

–Nick Milanes, Publicity Assistant

From The Amoeba in the Room: Lives of Microbes by Nicholas P. Money:

The creature with the largest eyes on earth is a mollusk…the biggest mollusk, the colossal squid of the Antarctic. The paired orbs of this cephalopod are one foot in diameter and hold a lens as big as an orange. The creature with the smallest eyes (single cells) are the eyes in the single-celled organism warnowiid dinoflagellates.

–Purdy, Director of Publicity

From Warriors and Worriers: The Survival of the Sexes by Joyce F. Benenson with Henry Markovits:

In a 1997 study, researchers brought groups of young boys and groups of young girls into separate rooms, provided them with toys and balls, and allowed them to play as they liked (so long as no injury was involved). The male groups quickly organized into competing teams and created games with complex systems of rules; they spent as much time arguing over the rules as playing their games, and seemed to enjoy these arguments. The girls played with the various toys, but did not organize themselves in any way, and were happy to leave when the experiment concluded.

–Owen Keiter, Associate Publicist

From Becoming Catholic: Finding Rome in the American Religious Landscape by David Yamane:

On 19 April 2014, the day before Easter, many people will experience the Rite of Christian Initiation of Adults (RCIA)—the process by which individuals become Catholic in a late-modern society. Since 1988, well over two million individuals in the United States have entered the Catholic church through the RCIA process.

–Tara Kennedy, Senior Publicity Manager

From Belief Without Borders: Inside the Minds of the Spiritual but not Religious by Linda Mercadante:

I’ll usually avoid talk of religion while socializing but this topic might be safe. There’s a fast growing group of people in the United States known as “nones” or SBNR – spiritual but not religious. In the 2000s, 46 million people identified themselves as having no religious affiliation, an increase from 29 million people in the 90s. In the words of Robert Wuthnow, these are people who are “seekers of spiritual experience rather than dwellers in a firm religious location.”

–Jeremy Wang-Iverson, Senior Publicist

From Cybersecurity and Cyberwar: What Everyone Needs to Know by P.W. Singer and Allen Friedman:

I’m not afraid of talking about email at a party! Singer and Friedman insists that there’s much we can do as individual internet users to protect our security. Gmail has two step verification, there are password managers, and it’s important not to reuse passwords across different accounts. I was surprised to learn certain stories like the US Air Force base commander in the 2000’s who ordered his assistant to assign him a one digit password and that the most common password are “12345” and “password.”

–Jeremy Wang-Iverson, Senior Publicist

From Vodka Politics: Alcohol, Autocracy, and the Secret History of the Russian State by Mark Schrad:

Stalin was infamous for coercing his inner circle to drink heavily so that he could pry into their true feelings once inebriated. Dinners would go on until long past midnight, and so many officials we’re getting pushed into a nearby pond that some guards quietly drained it to avoid drowning.

–Jonathan Kroberger, Publicist

Jonathan Kroberger is a Publicist at Oxford University Press.

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The case law of the ICJ in investment arbitration

By Alain Pellet

The dialogue between the International Court of Justice (ICJ) and investment tribunals is, at first sight, mainly a one-way dialogue: investment tribunals often refer to the case law of the World Court in their reasoning, the Court, on the other hand, has always ignored the awards of these tribunals.

Although the ICJ is conscious of the existence of an important “State practice and decisions of international courts and tribunals in respect of” the protection of investment, it considers that they belong to “special legal regimes governing investment protection” created by “various international agreements, such as agreements for the promotion and protection of foreign investments and the Washington Convention.” For this reason, they may not, for example, impact — or, at least, have not impacted yet — applicable rules of general international law on diplomatic protection. This is debatable position.

By contrast, investment tribunals are keen to “accord deference to relevant statements by the International Court of Justice of general principles.” This is hardly surprising. International investment law is rooted in public international law. The rules and standards of protection of investors are today mainly codified in public international law instruments, bilateral or multilateral treaties concerning the protection of investment, and the disputes are generally settled by international arbitral tribunals. It is therefore only logical that these tribunals seek support in the case law of the ICJ to settle the numerous questions of public international law that arise.

As a consequence, investment tribunals do not hesitate to transpose and apply the Court’s jurisprudence when issues of general international law are at stake, for example when the issue before them concerns the jurisdiction of, or the procedure before, international courts and tribunals, the law of treaties, or state responsibility. (In this last respect, they consistently base themselves on the ‘Chorzów dictum’ on the obligation of reparation.)

“Reciprocally” public international law is also “enriched” by the case law of investment tribunals. They have brought some interesting clarification on several important and difficult questions of general international law. To take only a few examples, the state of necessity, the joint responsibility of a plurality of States, the application over time or the termination of treaties can be mentioned.

Palais de la Paix vue de face depuis la place de Carnegie. Photo by Lybil BER, 2007. CC-BY-SA-3.0 via Wikimedia Commons.

But this deference does not mean that investment tribunals consider themselves bound by the Court’s jurisprudence. There is no rule of precedent in international law and, therefore, the International Court of Justice’s case law can only be guiding, not binding. Nor does it mean that investment tribunals treat ICJ judgments as superior precedents and the weight of the Court’s jurisprudence in the arbitrators’ reasoning varies significantly depending on the problem being addressed.

Thus, it appears that investment tribunals do not hesitate to discard the Court’s jurisprudence when they deem it irrelevant. For example, investment tribunals have constantly rejected arguments on the need of an effective nationality based on the Nottebohm case. Although not undisputable, this rejection is quite understandable given the differences between natural and juridical persons.

In other cases, International Centre for Settlement of Investment Disputes (ICSID) tribunals’ ignorance of well-considered solutions adopted by the World Court is to be regretted. Thus, many investment tribunals have set aside the Barcelona Traction case without much explanation, simply noting that the Court “was concerned only with the exercise of diplomatic protection […] and involved what the Court considered to be a relationship attached to municipal law, but it did not rule out the possibility of extending protection to shareholders in a corporation in different contexts.” However, as Z. Douglas points out, in so doing, these tribunals ignore an important point which “is relevant to investment treaty arbitration” that the “International Court and several individual judges addressed”: the question of “how to approach the concept of a shareholding on the international plane.”

On the contrary, it can happen, that investment tribunals take shelter behind International Court of Justice judgments to avoid difficult legal discussions. The binding character of provisional measures indicated by investment tribunals is probably the most striking example. In 2001, the Tribunal in Pey Casado transposed by analogy the solution adopted by the ICJ in its 2001 Order in the LaGrand case and affirmed the binding character of interim measures under Article 47 of ICSID (para 20). It prefered the support of the Court’s jurisprudence over a thorough analysis of Article 47 and ignored that “the relevant enquiry remains for the Tribunal to interpret and apply the terms of the [treaty] itself” — as the Tribunal in Tulip Real Estate wisely recalled in its 2013 Decision on Bifurcation (para 47).

Less controversial is the destiny of Judge Higgins’ opinion appended to the 1996 International Court of Justice Judgment in the Oil Platforms case in which she proposed a test to verify whether a dispute falls rationae materiae within the jurisdiction of the Court (ICJ Rep 809–10, para 16). The ‘Higgins test’ has been referred to and developed by investment tribunals over the past decade and is now part of positive general international law as well as of investment law.

Finally, it seems that, apart from few unfortunate examples, the dialogue between investment tribunals and the International Court of Justice is a fruitful dialogue from which general international law emerges strengthened — which confirms that “fragmentation” is not a risk but a chance.

Alain Pellet is a Professor at University Paris Ouest, Nanterre La Défense, former member and Chairperson of the International Law Commission of the United Nations, President of the French Society for International Law and member of the Institut de Droit International. In 2011, he has been designated to the ICSID Panel of Arbitrators by the Chairman of the Administrative Council. He has been consulted by numerous governments and international organisations. He has acted and is still acting as Counsel and lawyer in more than 50 cases before the International Court of Justice and the International Tribunal for the Law of the Sea as well as several international and transnational arbitrations, international investment cases. He has also served as an arbitrator in several investor-State arbitration cases (including ICSID and UNCITRAL). He is the author of “The Case Law of the ICJ in Investment Arbitration” (available to read for free for a limited time) in the ICSID Review. He is also the author of numerous books and articles with special emphasis on General International Law and International Investment Law.

ICSID Review is a specialized periodical devoted exclusively to foreign investment law and international investment dispute settlement. It offers legal and business professionals an up-to-date review of the field and includes articles, case comments, documents, and book reviews on the law and practice relating to foreign investments as well as the procedural and substantive law governing investment dispute resolution. Oxford University Press publishes ICSID Review on behalf of the International Centre for Settlement of Investment Disputes.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.

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Cancer virus: the eureka moment

By Dorothy Crawford

On 24 February 1964 a young research virologist at the Middlesex Hospital in London peered at the screen of an electron microscope and saw a new virus. It turned out to be a human cancer virus – the first ever discovered. That young virologist was Tony Epstein, now Sir Anthony Epstein, and the virus was named Epstein-Barr virus, or EBV, after him and his research assistant Yvonne Barr.

On seeing the virus Epstein’s excitement was unbounded. In his own words:

‘I was so amazed and euphoric that I was terrified that the specimen would burn up under the electron beam. So I switched the microscope off and walked round the block without a coat in the snow. When I had calmed down I came back and took pictures.’

The cancerous tumour from which EBV was isolated was Burkitt Lymphoma, named after Denis Burkitt, the Irish surgeon who first described it. Burkitt was working in Uganda in 1957 when he saw a small boy with swellings on both sides of his upper and lower jaw so large that they had dislodged his teeth and grossly distorted his facial features. Burkitt was mystified and when lab tests were inconclusive he decided that it was ‘another of the curiosities that one had become accustomed to seeing from time to time in Africa.’

But then, while visiting another hospital a few weeks later, Burkitt saw another child with exactly the same type of facial swellings. Now he knew that this was more than a curiosity and he immediately started to investigate. By delving into hospital records, sending questionnaires to other hospitals and missions and travelling throughout Sub-Saharan Africa, Burkitt uncovered the tumour’s fascinating demography. This was the story he told for the first time outside Africa when giving a lecture at the Middlesex Hospital while on leave in the United Kingdom in 1961.

Epstein-Barr virus (EBV)

With Epstein in the audience, Burkitt described a unique childhood tumour with a distribution that mirrored that of well-known mosquito-transmitted diseases like yellow fever. He therefore suggested that the tumour might also be spread by an insect vector.

As the story unfolded Epstein realised that Burkitt Lymphoma could well be caused by a virus. At the time he was working on viruses that cause tumours in laboratory animals; viruses that most experts dismissed as having no relevance to human tumours. Indeed, these same experts thought the idea of a human tumour virus was entirely fanciful. Nevertheless Epstein was galvanised into action.

Within a short time Burkitt Lymphoma samples were winging their way from Kampala in Uganda to Epstein’s lab in London. But try as he might Epstein could not find a virus in the tumour cells. It took almost three years of frustration before the breakthrough came.

On a cold Friday in December 1963 a Burkitt Lymphoma sample was expected from Kampala. But Heathrow airport was fogbound and the plane carrying this valuable cargo was diverted to Manchester. When the sample eventually arrived in the lab in late afternoon the transport fluid appeared cloudy – a sure sign of bacterial contamination. However, Epstein examined it under a light microscope and saw not bacteria but tumour cells floating free in the fluid. With little hope of salvaging anything useful Epstein put the cells into a culture flask and headed home for the weekend.

These were the first cells of this type that ever grew in culture. In fact they grew and grew until by February 1964 there were enough to examine under the electron microscope. And on the 24th of that month, after three years of hard work, the eureka moment arrived – a new virus!

But when Epstein and Barr published their exciting findings back in 1964 they were met with scepticism – the onus was on them to prove that EBV did indeed cause cancer. As it turned out this was not an easy task and it took many years and several technical advances before the doubters were convinced.

Now, exactly 50 years after its discovery, we know that EBV infection is very common. The virus usually infects young children without causing illness, although infection later in life may result in glandular fever (also called infectious mono). Once inside the body EBV lodges there for life as a harmless infection. Presently over 90% of the world’s adult population are unknowingly carrying the virus. However, EBV is also associated with several different types of cancer, including nasopharyngeal carcinoma, lymphoma in those with immune defects such as transplant recipients and HIV carriers, around 50% of Hodgkin lymphoma cases, a proportion of gastric cancers as well as African Burkitt Lymphoma. The total number of new cases of EBV-associated cancers worldwide is estimated at around 200,000 annually.

The obvious questions to ask are how and why EBV, generally a harmless virus, causes cancer in a few unfortunate people? Over the years researchers have found that a complex chain of events is required to transform a normal cell into a cancer cell. For Burkitt Lymphoma, EBV is one such event and another is recurrent malaria infection, the latter accounting for the geographical restriction first noted by Burkitt in the 1950s. For the other EBV-associated cancers several specific environmental and genetic factors need to coincide before a cancer cell evolves, thus making the tumours much rarer than the virus infection itself. The exact nature of these cancer-promoting factors is still the subject of intense study by hundreds of EBV researchers around the world.

Dorothy H. Crawford has been Assistant Principal for Public Understanding of Medicine at the University of Edinburgh since 2007. Her books include The Invisible Enemy (OUP, 2000), Deadly Companions (OUP, 2007), Viruses: A Very Short Introduction (OUP, 2011), and Virus Hunt (OUP, 2013). Her latest book is Cancer Virus: The Story of Epstein-Barr Virus. She was elected a Fellow of both the Royal Society of Edinburgh and the Academy of Medical Sciences in 2001, and awarded an OBE for services to medicine and higher education in 2005. She has written several articles for the OUPblog.

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Image credit: Epstein-Barr virus (EBV). National Cancer Institute. Public domain via Wikimedia Commons.

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Farmily album: the rise of the felfie

By Jonathan Dent

Words are patient things. They need to be: language change is often a slow process, measured, for the most part, in centuries and not months. A new word (a neologism), whether it enters English as a loanword, a borrowing from another language, or whether it is formed within English from pre-existing words and affixes, usually has to wait until a decent interval has elapsed before it settles down and starts a lexical family of its own, becoming the parent (or etymon) to new words for which it provides one of the building blocks.

Occasionally, however, a word arrives on the scene that has no intention of waiting around, and in an age of social media and instant linguistic gratification and dissemination, these cocky newcomers are becoming more common, and Oxford Dictionaries Word of the Year 2013, selfie, announced in November last year, is rapidly proving itself to be an unstoppable propagator of new words.

Coming up with the perfect blend

Almost all of these new coinages which base themselves on the word for a photographic self-portrait are ‘blends’ or portmanteau words, formed by replacing the initial ‘s’ of selfie with the opening letter or sound of some word indicating what kind of self-portrait is being shared with the world—what body part is the focus of the image, where it was taken, who (or what) is in the photo as well as the self in question. Back in November, we singled out a few of these new coinages, including melfie (a male-, moustache-, or Monday-selfie), helfie (a hair-selfie), and belfie (a butt- or bottom-selfie).

Few of these derivatives of selfie have made the headlines in their own right, possibly because, as some of the above examples show, attaching an initial letter or two to the body of another word doesn’t provide much information about which first word is intended, once the word is detached from its immediate context. Most of the blended words that have stayed with us in English play on the fact that their two parent words share some sounds in common, like motel or bromance, and therefore convey a clear impression of which two words have been sandwiched together in this way (although there are notable exceptions to this rule, like brunch). It’s no surprise then that the one -elfie word mentioned in the Word of the Year posts which was a true blended word, shelfie, realized some of its obvious ‘hipbrow’ appeal, prompting a flurry of bookshelf ‘portraits’ on social media sites over the festive period.

E, i, e, i, oh . . .

One that we didn’t spot in November, however, was felfie. It was out there, but lying low, characterized by a typical confusion about what kind of selfie it really was. An entry added to urbandictionary.com in April 2013 defined it as ‘a fake selfie’, but it had been around since at least October 2010, when a user on Flickr posted a photograph with the tags ‘#self portrait #face selfie, #felfie? #facie?’ Another photograph tagged #felfie later that year featured its poster modelling a pair of trainers—a foot-selfie. None of these early meanings has attracted any media attention, so it was something of a surprise around the beginning of 2014 when felfie settled down to mean only one thing: the farmer-selfie.

The vogue for farmers taking photographs of themselves at work, preferably with an adorable animal in shot (if you can get it to lick your face or ear, so much the better) seems to have been sparked by a Christmas competition in the Irish Farmers Journal. The subsequent proliferation of selfies taken in muddy fields with bemused or oblivious animal onlookers and their owners has sparked its own twitter hashtag, websites and tumblrs, and a Facebook community page with around 36,000 likes (and counting).

The champions of the felfie, the farmers themselves, see this as a much-needed opportunity (in the words of Will Wilson, curator of farmingselfies.com) ‘to put a face to the farmers who work hard to put food on your table’, while Rob Campbell, writing in the Western Daily Press on 9 January saw the trend as having the potential to connect a scattered farming population with one another, as well as with the outside world:

A felfie is a new way of communicating for the half a million or so of us who work on the three-quarters of our land area which is given over to farming…, the perfect way for those who work outdoors and alone to keep in touch with each other – and, because of social media’s reach, to educate the rest of us as to what it is that actually happens out there in those fields.

Given the media attention in both Ireland, the UK, and as far afield (geddit?) as Canada, where both tabloid and broadsheet newspapers have reported on the craze for felfies, those taking and sharing their farmyard self-portraits seem to be achieving their aims. The popularity of the felfie, though, seems to be at least as much rooted in the seemingly inexhaustible needs of an increasingly urban society, creating its connections and consuming its information about the outside world through the internet and social media, to share, and stare raptly at photographs of the animals we encounter all too rarely in everyday life. While for many, selfie represented the self-regarding, insular tendencies of modern (online) life, the felfie seems to embody a desire to look beyond the screen to the greener world that city dwellers have been yearning for since the days of Hesiod, Theocritus, and Virgil.

Whatever is the secret of their success, felfies are enjoying their moment in the sun, hitching a ride on the coattails of their more famous parent. While Rob Campbell may not get his wish to make felfie the Oxford Dictionaries Word of the Year 2014, it’s certainly a good contender for the word of the month.

A version of this article originally appeared on the OxfordWords blog.

Jonathan Dent is an Assistant Editor on the Oxford English Dictionary.

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Pascal Pichonnaz on set-off and commercial arbitration

What is set-off and how does it relate to commercial arbitration? The cumbersome transfer of money in international commercial transactions is complex enough without disputes arising and bringing issues of applicable law and jurisdiction. We sat down with Pascal Pichonnaz, co-author of Set-Off in Arbitration and Commercial Transactions, to discuss the concept and talk about how this field of law is developing.

What is the most controversial issue in your field right now?

A regular question which pops up is whether a party may rely upon set-off, despite that the cross-claim may not fall within the jurisdiction of the arbitral tribunal. There are still controversies on such issues, but the new trend broadly accepts the idea that set-off should be available even if the cross-claim is not within the jurisdiction of the arbitral tribunal.

How has thinking evolved on this issue?

At first, arbitrators and courts have been very reluctant to “frustrate” one party of its ordinary judge. However, under the influence of Civil law traditions, many arbitral institutions have set rules (especially Swiss Rules) that have largely opened the right to rely on set-off. It is linked to the idea that set-off is a kind of payment and that, therefore, it should be favored as much as possible. There are some limitations that should be considered, e.g. when a cross-claim is subject to a very specific jurisdiction (such as labour law tribunals).

Can you explain what set-off is to people who aren’t familiar to it?

As such, set-off is a very simple mechanism. When a person owes me 100 and I owe her 40, then we will simplify the regime as only the difference between both amounts should be paid. This works in everyday life, as long as people agree to it. What should happen however if one party does not want to set-off, either because she wants to be paid in cash for many possible reasons or because a suit has already been filed for one of the reciprocal claims? Many systems have different requirements to enable one party to impose set-off on the other. It makes it more difficult on a transnational perspective to decide when set-off should be available and when not. The whole issue becomes even more tricky when insolvency proceedings are open against one party; it is then very attractive to set-off one’s claim against the insolvent party with what he owes to the solvent one, since the creditor of the insolvent party will be better off by using set-off as by getting the “ordinary” insolvency percentage on his claim.

In arbitration, the situation is also critical, because the parties agree to submit a specific dispute to chosen arbitrators. Is it then really fair and justified to allow the arbitrators to decide also on the cross-claim, which was not part of the arbitral agreement? As I already mentioned, the tendency is to say yes. In other words, this field — especially in a transnational perspective — is really fascinating, important and difficult for practitioners.

Have there been any major or interesting set-off cases in arbitration and commercial transactions recently?

There are certainly many. However, what is peculiar with arbitration, is that you do not know always about these cases since they are not necessarily published or communicated. English law had, however, some important cases quite recently.

What do you hope to see in the coming years from both commercial arbitration and the issues it presents?

Commercial arbitration is still booming; the reasons for this are diverse. However, the more people are active on this field the more one needs to share the information (and awards) for the larger community. Indeed, what matters first for the parties is to get a solution, if possible the best they can get. However, there will be more and more a need to be treated equally despite the specific personalities of the arbitrators. Sharing common understandings across the legal cultures on how to deal with set-off would be already a good step forward.

What are scholars in the dicussing? For example, what was the most popular topic under discussion at the last conference you attended?

Well, I attended a conference on the importance of historical perspective in the evolution of modern concepts of law. While trying to envisage a harmonization or unification of private law in Europe for instance, one could ask whether it is useful to try to understand where the various concepts come from. Set-off is typical for that. The various answers in national systems are the result of a historical evolution that is rooted either in Roman law or in the specificities of Common law. To understand this evolution helps to get rid of old ideas when necessary and to craft a more contemporary regime of set-off, compatible with our modern needs.

What are you reading in your field at the moment?

I have just finished a very good book by Stephen Waddams on the principles of law. A fantastic book!

Pascal Pichonnaz has been a Professor at the Law School of the University of Fribourg (Switzerland) since 2001, where he is also Chair for Private Law and Roman Law (teaching Roman Law, Contract Law, European Private Law and European Consumer Law). He is also a visit professor at several institutions, including the Center for Transnational Legal Studies, the Paris Panthéon-Assas, the University of Rome and the University d’Auvergne Clermont-Ferrand. Along with Louise Gullifer he has written Set-Off in Arbitration and Commercial Transactions.

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The Black Book: Phillis Wheatley and the information revolution

By Richard Newman

Phillis Wheatley, in a portrait of 1773 by the African American engraver Scipio Moorhead. It was the frontispiece in Wheatley’s Poems on Various Subjects, Religious and Moral. Library of Congress.

The noble ideal of Black History Month is that by extracting and examining key people and moments in the African American grain, we learn much about black achievement. But it is equally powerful to set black history in the grand swirl of events to see the many ways that African-Americans have impacted the nation’s political and cultural development. Take Phillis Wheatley, the first published African-American author and the original poet laureate of black letters. Thanks to generations of great scholarship, we know more about Wheatley’s magical muse than ever before, especially her ability to distill the hopes and horrors of the black experience in lines of verse that dance off the page. (And English was not even her first language!)  But what if we read Wheatley as part of America’s information revolution?

This thought came to me while reading through an old booklet at my soon-to-be new job as the director of the Library Company of Philadelphia—Ben Franklin‘s subscription library founded in 1731. The idea behind the library was simple:  shareholders pooled money to buy books and thus gain access to the information revolution unleashed by the printing press. The booklet I was thumbing through, a reproduction of the “Journal of the Proceedings of the Congress, held in Philadelphia, September 5, 1774,” illuminated the first continental debates of those Americans careening (whether they knew it or not) toward revolution. But the introduction to the booklet contained something nearly as interesting about Wheatley. Just a few days before the delegates gathered in Carpenter’s Hall—which also housed the Library Company—the Librarian told shareholders that he had recently purchased the first-ever edition of Phillis Wheatley’s book, Poems on Various Subjects, Religious and Moral.

Say what?

The story gets more interesting, for at that same meeting the Library Company’s directors decreed that its stacks of books on history, philosophy, politics, science, and now African American literature would be open to the delegates arriving in Philadelphia.

Just imagine: slaveholding Patrick Henry now had access to Phillis Wheatley!

Beyond such fanciful literary encounters, I was struck by a simple fact: members of Franklin’s library felt strongly about adding Wheatley’s work to their catalogue. In other words, they saw her literary struggles as an exciting new part of the information age. (Wheatley’s 1773 book was actually printed in London.) Why? While white abolitionists had already authored critiques of slavery, and various travel writers had crafted books on African society, African Americans were just beginning to write for themselves. Wheatley’s book shattered the abstract nature of societal debates about African American life and thought. She had to be crafty, savvy, politic—Wheatley would not threaten to burn down the master’s house with literary fire (though others would soon do just that!). But Wheatley’s way with words was still brilliant and brave. She claimed freedom as her birthright and liberty as her muse. While American colonists complained about being metaphorical slaves to the British, Wheatley wrote about the sadness of real bondage in America. And she noted that Americans must right racial wrongs lest they appear to the world as hypocrites.

Her book became part of a literary groundswell among Black Founders: men and women who launched the African American freedom struggle in the nation’s earliest years by writing, reprinting speeches, and producing poetry about racial oppression. The Black Antislavery Writings Project at the University of Detroit Mercy has gathered over 1800 documents authored by African Americans from the late 18th and early 19th centuries—an astonishing literary output for an oppressed people. Well before Frederick Douglass, Maria Stewart, and Solomon Northup, black activists realized that, as Ishmael Reed would put it, “writin’ is fightin’”! Many of these books ended up in the libraries of American and British abolitionists. Wheatley herself enjoyed a marvelous publication history right up to the Civil War era, as new generations of black and white Americans looked back in wonder at her achievements.

I wonder what it must have been like in 1774, when Wheatley’s book was first placed on a Philadelphia library shelf, awaiting new readers in what would become the cauldron of the American Revolution. Did they realize that her words were revolutionary, too?

Richard Newman is Professor of History at Rochester Institute of Technology and the author of Freedom’s Prophet: Bishop Richard Allen, the AME Church and the Black Founding Fathers, as well as co-editor of the series, Race in the Atlantic World. He is the incoming Edwin Wolf Second Director of the Library Company.

The Oxford African American Studies Center combines the authority of carefully edited reference works with sophisticated technology to create the most comprehensive collection of scholarship available online to focus on the lives and events which have shaped African American and African history and culture. The Oxford African American Studies Center is free for Black History Month. Simply use Username: blackhistorymonth and Password: onlineaccess to log in.

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Predicting who will publish or perish as career academics

By Bill Laurance, Carolina Useche, Corey Bradshaw, and Susan Laurance

It doesn’t matter whether or not you think it’s fair: if you’re an academic, your publishing record will have a crucial impact on your career.

It can profoundly affect your prospects for employment, for winning research grants, for climbing the academic ladder, for having a teaching load that doesn’t absorb all your time, for winning academic prizes and fellowships, and for gaining the respect of your peers.

And as our new research published online in the journal BioScience this month shows, if you’re a woman, if English is not your first language, or if you’re still a student, you should be particularly aware of the value of publishing sooner than later.

It’s not called “publish or perish” for nothing.

Picking winners and losers

For a young academic, can we predict whether he or she will ultimately be successful? This is clearly important, both for those trying to identify and recruit future academic stars, and for those striving to train the successful academics of tomorrow.

Of course, “success” is a loaded word. We’re not suggesting that the publication rate of scientists is the only metric of their academic, societal, or political influence.

Nonetheless, the number of peer-reviewed articles a scientist publishes, and the number of times those works are cited by others, are generally a good reflection of their academic reach.

We attempted to predict the publishing winners and losers, focusing on biologists and environmental scientists on four continents, using five easily measured variables. Our findings seem surprisingly unequivocal but are already provoking strong reactions of agreement and disdain.

Here’s what we concluded.

It doesn’t matter whether you got your PhD at glittering Harvard University or a humble regional institution like the University of Ballarat. The supposed prestige of the academic institution has almost no bearing on your long-term success, once other key variables are accounted for.

Secondly, if you’re a woman, or if English isn’t your first language, you’re going to face some minor disadvantages in publishing. The differences are not huge, on average, and there’s enormous variability among different individuals, but men who are native English speakers do tend to have half a leg up in the publishing game.

Finally, by far the best predictor of long-term publication success is your early publication record – in other words, the number of papers you’ve published by the time you receive your PhD. It really is first in, best dressed: those students who start publishing sooner usually have more papers by the time they finish their PhD than do those who start publishing later.

The take-home message: publish early, publish often.

A hidden gender gap

But we have to admit a big caveat: because of limitations in the data available to us, our findings apply only to those who have remained in academia over their careers. Many hopeful academics don’t achieve this milestone, either dropping out at some stage or failing to secure an academic job.

Had we been able to surmount this limitation — perhaps by following a large cohort of individuals from their youth through their entire academic careers — our conclusions would probably have differed somewhat.

For one thing, the impact of gender on success would almost certainly have been greater.

Academia is a notoriously “leaky pipeline” for women. As one moves up the academic ladder, the proportion of women falls off from 40-77% at the time of PhD conferral to around 10% at the level of full professor.

Several explanations have been forwarded for this, including the heavy demands of motherhood in the early stages of a woman’s career, potential gender bias, and the fact that women tend not to promote themselves as aggressively as do some men.

We believe the ruthless Darwinian process that hinders women in academia also applies to those for whom English is a second or third language, given that nearly nine-tenths of all academic journals are published in English. For such people, there is great variation in English proficiency, and those with better skills are clearly more likely to succeed.

Start early

Despite these limitations, our study still flags early publication success as being vital. For whatever reason, some individuals evidently “get” the publishing game earlier than do others. Relative to their peers, they might be better motivated or better writers, or work in better lab environments with better mentoring.

Publishing scientific papers is a complex and challenging skill, and once a young scientist begins mastering this process, their path gets less rocky. It becomes easier to get other papers accepted, to win grants and fellowships, and to gain more research opportunities.

Small differences early in a career can snowball into much greater differences over time. For the biologists and environmental scientists we studied, the number of papers they published over their careers varied hugely, by over a hundred-fold.

Most of all, our study suggests that early training of PhD students is crucial, and that we must strongly encourage them to publish early and often. To gain real traction, we suggest, this should also be a criterion for evaluating the success of their PhD supervisors.

Furthermore, for those involved in hiring academics, we suggest that one of the best ways to identify prospective science stars is simply to compare their research output at an early stage of their career (such as the year they received their PhD, or a few years afterwards to account for postdoctoral productivity).

We’re well aware, of course, that hiring decisions are influenced by a range of personal and professional attributes. But all else being equal, early scientific productivity seems to be a simple and surprisingly effective predictor of long-term publishing success.

This article was originally published on The Conversation. Read the original article.

Bill Laurance, James Cook University; Carolina Useche, The Alexander von Humboldt Institute for Research on Biological Resources; Corey Bradshaw, and Susan Laurance, James Cook University. Together they are the authors of “Predicting Publication Success for Biologists” (available to read for free for a limited time) in BioScience.

Disclosure statement: Bill Laurance receives funding from the Australian Research Council and other scientific and philanthropic organisations. In addition to his appointment as distinguished research professor and Australian Laureate at James Cook University, he also holds the Prince Bernhard Chair in International Nature Conservation at Utrecht University, Netherlands. This chair is co-funded by Utrecht University and WWF-Netherlands. Carolina Useche, Corey Bradshaw, and Susan Laurance do not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article. They also have no relevant affiliations.

A peer-reviewed, heavily cited monthly journal, BioScience includes articles about research findings and techniques, advances in biology education, professionally-written feature articles about the latest frontiers in biology, discussions of professional issues, book reviews, news about AIBS, a policy column (Washington Watch), and an education column (Eye on Education). Roundtables, forums, and viewpoint articles offer the perspectives of opinion leaders and invite further commentary.

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Book vs movie: Thérèse Raquin and In Secret

In Secret, the new movie adaption of Zola’s Thérèse Raquin starring Jessica Lange, Tom Felton, and Elizabeth Olsen premieres today. The novel tells the scandalous story of adultery in 19th century France. When Thérèse is forced into a loveless marriage, her world is turned upside down upon meeting her husband’s friend. The two enter into an affair that has shocking results.

Does the film stay true to the original? Compare this clip from the Toronto International Film Festival and an excerpt from the Oxford World’s Classics edition of the novel below, and let us know what you think in the comments.

One Thursday, when Camille came home from the office, he brought with him a tall, square-shouldered fellow whom he pushed through the door with a friendly shove.

‘Mother’, he asked Madame Raquin, pointing to him, ‘do you recognize this gentleman?’

The old woman stared at the tall fellow, searched through her memory, and drew a blank. Therese looked on placidly throughout the whole scene.

‘What!’ continued Camille. ‘You mean you don’t recognize Laurent, little Laurent, the son of old Laurent who had such excellent fields of wheat, over Jeufosse way? … Don’t you remember? … I used to go to school with him; he’d come round to fetch me every morning from his uncle’s house nearby, and you always gave him bread and jam.’

Madame Raquin did suddenly remember little Laurent, though it seemed to her that he had grown rather a lot. It was a good twenty years since she had last seen him. She tried to make up for not having recognized him sooner with a flood of recollections and motherly endearments. Laurent had sat down, smiling gently, answering in a clear voice, and looking around him calmly, quite at his ease.

‘Would you believe it,’ said Camille; ‘this character has been working at the Orleans station for the past eighteen months, and we only recognized each other for the first time this evening? It just goes to show what a big, important company it is!’

Click here to view the embedded video.

As he said this, the young man widened his eyes and pursed his lips, as proud as could be that he was a small cog in such a big machine. He went on, shaking his head:

‘Of course, he’s doing all right, he is, he’s got qualifications; he’s already getting fifteen hundred a month. His father sent him to college to do law, and he’s even learned how to paint. That’s right isn’t it, Laurent? … You’ll stay to dinner, won’t you?’

‘All right,’ replied Laurent, making no attempt to decline. He put down his hat and made himself at home in the shop. Madame Raquin hurried off to look after things in the kitchen. Therese, who had not yet said a word, looked at the newcomer. She had never seen a real man before. Laurent, tall, strong, and fresh-faced, filled her with astonishment.

She stared with a kind of wonder at the low forehead, from which sprung black bushy hair, the full cheeks, red lips, and regular features which made up his handsome, full-blooded face. Her gaze lingered for a while on his neck, which was broad and short, thick and powerful. Then she became lost in contemplation of the huge hands, which he kept spread across his knees as he sat there; their fingers were square and his clenched fist must be enormous, capable of felling an ox.

Laurent was of true farming stock; he had a rather heavy, stooping gait, his movements were slow and careful, and his face wore a calm, stubborn expression. Beneath his clothes you could make out the well-developed, bulging muscles and the firm, solid flesh of his body. Therese looked him up and down with great curiosity, from his fists to his face, and a little shiver ran through her when her glance settled on his bull’s neck.

Camille got out his volumes of Buffon and his penny instalments, to show his friend that he too was studying. Then, as if in reply to a question he had been asking himself for some time, he said to Laurent:

‘By the way, you do know my wife, don’t you? You remember my little cousin who used to play with us at Vernon?’

‘Of course. I recognized Madame at once,’ replied Laurent, looking Therese straight in the eye.

This direct gaze, which seemed to pierce her to the core, made the young woman feel almost unwell. She gave a forced smile and exchanged a few words with Laurent and her husband, before hurrying off to help her aunt. She was quite unsettled.

Émile Zola was the leading figure in the French school of naturalistic fiction, of which Thérèse Raquin is his earliest example. His works span an extraordinary panorama of mid‐19th‐century misery, poverty, and the violence of human instinct.

For over 100 years Oxford World’s Classics has made available the broadest spectrum of literature from around the globe. Each affordable volume reflects Oxford’s commitment to scholarship, providing the most accurate text plus a wealth of other valuable features, including expert introductions by leading authorities, voluminous notes to clarify the text, up-to-date bibliographies for further study, and much more. You can follow Oxford World’s Classics on Twitter, Facebook, or here on the OUPblog. Subscribe to only Oxford World’s Classics articles on the OUPblog via email or RSS.

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