I aim in this paper to provide defense of one way to look at what should be regulated in the market place. In particular, I discuss what should be tolerated and argue against corporate welfare. I begin by endorsing John Stuart Mill’s harm principle as a normative principle of toleration. I call strict commitment to the harm principle when considering the regulatory structure of markets market libertarianism and oppose that to promotionism, the view that endorses government interference to promote business (...) interests. I next discuss the widespread use of promotionist policies, arguing against them and for market libertarianism. I also consider problems for my view, recognizing that one of my responses may leave some thinking the paper is a reductio of the market libertarian view because of the sort of slow-growth state it endorses. Others will recognize it as a view promoted by some of the U.S. founding fathers and find it attractive in its own right. (shrink)

Thirty-five papers by outstanding specialists of philosophy of law and comparative law from Western Europe, Central Europe, Eastern Europe, as well as from Northern America and Japan, dedicated to the Hungarian philosopher of law and comparatist Csaba Varga.

Many philosophers conceive of freedom as non-interference. Such conceptions unify two core commitments. First, they associate freedom with non-constraint. And second, they take seriously a distinction between the interpersonal and the non-personal. As a result, they focus our attention exclusively on constraints attributable to other people’s choices – that is, on interference. I argue that these commitments manifest two distinct concerns: first, for a wide range of options; and second, for other people’s respect. However, construing freedom as non-interference unifies these (...) concerns in a way that does justice to neither. In particular, it focuses our attention on phenomena that are at best tangential, and at worst hostile, to our interest in respect. If we wish to preserve the distinctive significance of the interpersonal, we would be better served by a conception of freedom that focuses immediately on what I call "the social conditions of respect.". (shrink)

This dissertation offers a dialectical analysis of law creation insofar as legal rules and processes of social ordering are the products of interactions among agents inter se and between agents and legal institutions. This perspective demands that agents be regarded as contributing to the creation of law governing their own lives. The agents involved are not restricted to legal officials but include all persons with the capacity to exercise agency. This perspective of law creation is defended on the basis that (...) the dialectical analysis permits a better comprehension of the relationship between law and morality. The normative defence of the dialectical approach is based on four inter-related arguments. First, law creation is an instantiation of moral practice for "full insiders", these being agents committed to norms and intrinsic goods. Secondly, the conflicts ensuing from the interactions of agents tend to imbue legal authority with some degree of legitimacy through normative compromises. Thirdly, as the agents involved in this process exercise political freedom, they have the capacity to exercise judgement in mediating between a commitment to institutional structures that facilitate moral practice and a commitment to moral reasoning that can counsel the instigation of change. Lastly, even in the case of "truncated insiders", agents who are not committed to moral reasoning, there are certain weak prudential checks that exist within the games they play inhibiting unfair processes and unjust outcomes. (shrink)

Despite tributes paid to Fuller as an intellectual father of ADR, little attention has been paid within the ADR field to the broader interactionist vision that underlies Fuller’s discussion about process. A closer reading of Fuller’s study of mediation, however, reveals that he intended that study to substantiate his interactionist thesis about the nature of social ordering. He understood ordering to be generated by and to reflect a particular experience of social interaction. Fuller’s interactionist vision recognizes the creative, choice-making and (...) purposive dimensions of human reality, emphasizes participation as a normative criterion for institutional design, and gives rise to a pluralistic notion of power arrangements. It appears in Fuller’s thinking about process as a kind of dialectic and integrative mindset that pervades his means-ends analysis, functional analytical approach and his emphasis on institutional design. This interactionist vision has particular relevance for the practice and research of ADR, for example, in helping to develop a more integrative approach to process pluralism. (shrink)

Since at least the 1980s, police departments in the United States have embraced a set of practices that aim, not to enable the prosecution of past criminal activity, but to discourage people from breaking the law in the first place. It is not clear that these practices effectively lower the crime rate. However, whatever its effect on the crime rate, I argue that preventive policing is essentially distinct from legal governance, and that excessive reliance on preventive policing undermines legal governance. (...) To show this, I emphasize law’s unique aptitude to define legal subjects’ ‘manifest’ status relations – that is, the rights and obligations that live within their local practices. I then argue, first, that preventive policing does not aim to define these relationships; and second, that excessive preventive policing threatens the relationship that law must bear with its subjects if law is to define their manifest relations authoritatively. (shrink)

Nir Eisikovits argues in A Theory of Truces that most contemporary conflicts wind down in a much more piecemeal fashion than our theorizing about the morality of ending wars suggests. Pauses in violence are achieved by securing agreement on narrow questions. Moreover, rather than hoping to do away with violence, theorizing would do best, he writes, to take as its starting point the fact of warfare as part of the human condition. Eisikovits aims to articulate the features of truce thinking, (...) a framework that is more descriptively accurate and normatively useful in navigating contemporary conflicts and promoting reconciliation. After summarizing his view, I argue that Eisikovits’ explanation of the contribution of truces to political reconciliation is too narrow; contrary to what he claims, truces can make an important contribution to the rule of law. I also challenge Eisikovits’ characterization of the first feature of truce thinking. I argue that while there is an important present focus on immediate benefits from temporary measures, the future looms much larger than Eisikovits recognizes. Truces matter not only for what they make possible now, but also for their ramifications for prospects for future peace. These ramifications go beyond creating conditions for hope or optimism. (shrink)

The dissertation concerns F. A. Hayek’s critique of legislation. The purpose of the investigation is to clarify and assess that critique. I argue that there is in Hayek’s work a critique of legislation that is distinct from his well-known critique of social planning. Further that the main claim of this critique is what I refer to as Hayek’s legislation tenet, namely that legislation that aims to achieve specific aggregate results in complex orders of society will decrease the welfare level. The (...) legislation tenet gains support; from the welfare claim – according to which there is a positive correlation between the utilization of knowledge and the welfare level in society; from the dispersal of knowledge thesis – according to which the total knowledge of society is dispersed and not available to any one agency; and from the cultural evolution thesis – according to which evolutionary rules are more favorable to the utilization of knowledge in social cooperation than are legislative rules. More specifically, I argue that these form two lines of argument in support of the legislation tenet. One line of argument is based on the conjunction of the welfare claim and the dispersal of knowledge thesis. I argue that this line of argument is true. The other line of argument is based on the conjunction of the welfare claim and the cultural evolution thesis. I argue that this line of argument is false, mainly because the empirical work of political scientist Elinor Ostrom refutes it. Because the two lines of argument support the legislation tenet independently of each other, I argue that Hayek’s critique of legislation is true. In this dissertation, I further develop a legislative policy tool as based on the welfare claim and Hayek’s conception of coercion. I also consider Hayek’s idea that rules and law are instrumental in forging rational individual action and rational social orders, and turn to review this idea in light of the work of experimental economist Vernon Smith and economic historian Avner Greif. I find that Smith and Greif support this idea of Hayek’s, and I conjecture that it contributes to our understanding of Adam Smith’s notion of the invisible hand: It is rules – not an invisible hand – that prompt subjects to align individual and aggregate rationality in social interaction. Finally, I argue that Hayek’s critique is essentially utilitarian, as it is concerned with the negative welfare consequences of certain forms of legislation. And although it may appear that the dispersal of knowledge thesis will undermine the possibility of carrying out the utilitarian calculus, due to the lack of knowledge of the consequences of one’s actions – and therefore undermine the legislation tenet itself – I argue that the distinction between utilitarianism conceived as a method of deliberation and utilitarianism conceived as a criterion of correctness may be used to save Hayek’s critique from this objection. (shrink)

A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including freedom. Such (...) an understanding of the rule of law illuminates why the law-like character of God and the revelation of God’s law make human free will meaningful and a relationship of love between God and human beings possible. A commitment to the rule of law also means that those exercising power have to offer justifications to explain why the rules are binding, which opens up space for debate about whether the rules are just. (shrink)

One of the central moral challenges facing numerous political communities today is political reconciliation. In the aftermath of repression, conflict, and injustice, communities confront the task of repairing damaged relationships among citizens and between citizens and officials. In A Moral Theory of Political Reconciliation, I develop a theory of what this process entails and of its moral significance. My central claim is that political relationships are damaged when and to the extent that they fail to express reciprocity and respect for (...) agency. Failures of reciprocity and respect for agency are how relationships go wrong during extended periods of repression and conflict, and it is in cultivating these two values in relations among citizens and officials that relationships are repaired. I am very grateful for the thoughtful, incisive, and stimulating comments provided by Cindy Holder, Tracy Isaacs, and Alice MacLachlan. In this reply to their commentaries, I first provide a brief background of the motivation for my project and an overview of the main theses that I defend over the course of my book. I then turn to three kinds of concerns raised by Holder, Isaacs, and MacLachlan. The first urges me to rethink the restriction of my analysis of political reconciliation to contexts of transition. The second challenges the particular way that I conceptualize the demands of reciprocity and respect for agency in political relationships. The final set turns to my analysis of the processes that can facilitate reconciliation. (shrink)

Rule of law is a concept that is regularly debated by legal philosophers, often in connection to discussion of the concept of law. In this article, the focus is not on the substance of the conceptual claims, but on the methodologies employed by legal philosophers, investigating seminal articles on the rule of law by Joseph Raz and Jeremy Waldron. I argue that their philosophical argumentations often crucially depend on empirical or legal doctrinal arguments. However, these arguments remain underdeveloped. I explore (...) how these arguments could be linked to approaches related to rule of law in different fields of legal scholarship and investigate how the methodologies of these fields may complement each other. Thus, the article aims to provide an argument for a specific form of triangulation of three kinds of approaches to the rule of law: philosophical, social-scientific and legal doctrinal. This method of triangulation is illustrated by a discussion of the World Justice Project’s Rule of Law Index. (shrink)

Recent philosophical research on normativity has clarified the nature and dynamics of social norms. Social norms are distinguished from legal and moral norms on the basis of their scope, their grounds, their characteristic forms of accountability, or some combination of these features. Because of their distinct character, social norms can reinforce practical prescriptions, prohibitions, and permissions provided to particular actors by legal or moral norms. They also can conflict drastically with those prescriptions, prohibitions, and permissions resulting in serious practical dilemmas. (...) The identification of normative principles capable of resolving practical dilemmas arising from conflicts between different kinds of norms is a major aim of contemporary moral and political philosophy. This dissertation contributes to this aim by establishing the significance of conflicts between social norms and legal or moral norms during mass atrocities and liberalizing political transitions. The dissertation argues that social norms, and changes in social norms, are critical components of accurate descriptions and responsible evaluations both legal and moral of the actions of individuals and groups before, during, and after mass atrocities. The dissertation contends, further, that distinct principles of justice may apply to transitional efforts by non-state actors to transform social norms in societies recovering from large-scale crimes. Three principal results follow from this dissertations effort to integrate the conceptual framework of social norms into the study of mass atrocity. First, the dissertation clarifies and extends the historiographical thesis of norm transformation, according to which participation by ordinary individuals in mass atrocities is at least partially explained by transformations in basic norms that structure social and political life. Second, the dissertation identifies a novel basis on which to apportion legal and moral accountability for mass atrocities between individuals and groups or collectivities i.e. on the basis of the specific contributions of social norms. Third, the dissertation provides new support for the disputed claim that distinct principles of justice apply to the various actors involved in liberalizing political transitions. (shrink)

While avoiding the pretence of producing an exhaustive reading of such a complex object as Lars Von Trier's Dogville, this article selectively uses the film to explore the process of the emergence of a new legality and a new set of legal relationships within a community. Two superimposed layers of meaning, the biblical and the mythic, are considered and their interaction with two different reasons, the symbolic and the economic, is suggested and explored. The categories of ‘critical being’, by Fitzpatrick (...) and Tuitt, and homo sacer, by Agamben, are taken as useful tools to understand such interaction and the connected dynamics of inclusion and exclusion. Throughout the article, it is argued that the perspective of the sacrifice, as framed especially by Girard, is useful to highlight an anthropological mechanism that can be retrieved in Dogville. (shrink)

The over-exploitation of commonly-held resources is typically analyzed as an instance of market failure that calls for legislation to internalize the social costs that private activities impose on the environment. In this article, I argue that to the extent that this analysis ignores the regulatory effect of the common law, it is unsound. In The Tragedy of the Commons, Garret Hardin points out that there are two solutions to the tragedy: privatize the resource or restrict access to it. Environmental legislation (...) is a means restricting access to the commons. The evolutionary development of common law is a means of privatizing the commons. These represent alternative methods of environmental regulation. Proper public policy analysis requires a comparative assessment of the efficacy of these methods for resolving any particular environmental problem. In many, if not most cases, such an assessment will show common law regulation to be superior to environmental legislation. (shrink)

In the first half of this paper I show how H. L. A. Hart's theory of rules can resolve, or at least clarify, a central methodological problem in legal anthropology that was first posed in Llewellyn and Egebel's The Cheyenñe Way In the second half I explore and develop Hart's theory of rules, and apply it to problems of agency and behaviourism in legal anthropology, and of legal development, and apply it to the problem of rule-scepticism in legal anthropology as (...) it is posed in Roberts and Comaroffs Rules and Processes and elsewhere. (shrink)