Much has been written about the value of law, mostly in ideational terms. In this article, I draw attention to law’s pecuniary value. Law, I argue, is the very stuff from which many wealth generating, or capital, assets are made, foremost among them intangible assets that account for most of the private wealth today. For law to serve as a fountain of wealth, it must be backed by state power, and indeed, sovereign states have been more than willing to offer (...) a helping hand. They have found intellectual support in neoclassical economics and in its off-spring, law and economics, theoretical approaches that have sought to ground law in the scientific analysis of the economy, in efficiency rather than in justice. In doing so, they have averted their eyes from the fact that the most critical source for wealth, that is law, is itself of the state and should be subject to social norms enshrined in our constitutions, not abstract welfarism. (shrink)

ABSTRACT:Employing utilitarian criteria, Jones and Felps, in “Shareholder Wealth Maximization and Social Welfare: A Utilitarian Critique” (Business Ethics Quarterly23[2]: 207–38), examined the sequential logic leading from shareholder wealth maximization to maximal social welfare and uncovered several serious empirical and conceptual shortcomings. After rendering shareholder wealth maximization seriously compromised as an objective for corporate operations, they provided a set of criteria regarding what a replacement corporate objective would look like, but do not offer a specific alternative. In this article, we draw (...) on neo-utilitarian thought to advance a refined version of normative stakeholder theory that we believe addresses a major remaining criticism of extant versions, their lack of specificity. More particularly, we provide a single-valued objective function for the corporation—stakeholder happiness enhancement—that would allow managers to make principled choices between/among policy options when stakeholder interests conflict. (shrink)

This paper proposes a description of the moral obligations of economic agents. It will show that a threefold division should be adopted to distinguish moral obligations applying to their interactions in the market, obligations applying to their interactions inside business firms and obligations applying to their interactions with agents outside the market. Competition might be permissible in the first case since markets are special patterns of social interactions (called adversarial schemes). They produce their benefits when agents try to satisfy exclusive (...) preferences at the expense of others. However, moral obligations inside the firm and moral obligations outside the market are of a different nature. This argument will be developed in the two first parts of this paper. In the third part, it will outline the relevant strengths of that account in relation with two popular views of economic agents’ moral obligations: the shareholder primacy view and the stakeholder theory. (shrink)

This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with (...) regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation. (shrink)

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range (...) of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in and conduct that might well be criminalized. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights. (shrink)

ABSTRACT:Although a research focus on the increasing involvement of corporations in shaping and maintaining the global rules of the game points out promising avenues for future research, it simultaneously makes clear how little currently established, mostly managerial conceptual frameworks have to offer in making sense of these developments. It is argued that we need to expand the rather restricted perspectives that these frameworks provide, in order to explore new conceptual foundations that will not only enable us to travel the confines (...) of the different disciplines involved with the study of the changing role of business in shaping the global rules of the game, but that can also systematically connect normative and positive research questions at the conceptual level. Three directions for this search for new foundations are briefly explored. (shrink)

With respect to questions of fact, people use heuristics – mental short-cuts, or rules of thumb, that generally work well, but that also lead to systematic errors. People use moral heuristics too – moral short-cuts, or rules of thumb, that lead to mistaken and even absurd moral judgments. These judgments are highly relevant not only to morality, but to law and politics as well. Examples are given from a number of domains, including risk regulation, punishment, reproduction and sexuality, and the (...) act/omission distinction. In all of these contexts, rapid, intuitive judgments make a great deal of sense, but sometimes produce moral mistakes that are replicated in law and policy. One implication is that moral assessments ought not to be made by appealing to intuitions about exotic cases and problems; those intuitions are particularly unlikely to be reliable. Another implication is that some deeply held moral judgments are unsound if they are products of moral heuristics. The idea of error-prone heuristics is especially controversial in the moral domain, where agreement on the correct answer may be hard to elicit; but in many contexts, heuristics are at work and they do real damage. Moral framing effects, including those in the context of obligations to future generations, are also discussed. (shrink)

From Mill to, most recently, Bryan Caplan, political and economic elites have been seen as the solution to the public’s ignorance and incompetence. In order to show that elites are actually more competent than the public, however, we would have to find out what type of knowledge is necessary to enact good public policy. The empirical evidence shows that economic experts have a slight advantage over the general public in knowledge of how to achieve policy goals. But, contrary to Caplan, (...) the evidence indicates that economists don’t possess significant predictive knowledge, and that general economic laws are of little help in predicting the magnitude of the effects of a specific policy in a multi‐variable, complex world. When we adopt a more complex understanding of the reasons behind policy choice, and consider rules and principles in addition to goal pursuit, the slight edge of economic experts evaporates. (shrink)

the term as used by sunstein seeks to bring together various traditions. however, there are significant differences between uses of the term in the cognitive and the social psychological research, and these differences are accompanied by very distinct evidential criteria. we suggest the term should refer to processes, which means that further evidence is required.

A central point of debate over environmental policies concerns how future costs and benefits should be assessed. The most commonly used method for assessing the value of future costs and benefits is economic discounting. One often-cited justification for discounting is uncertainty. More specifically, it is risk aversion coupled with the expectation that future prospects are more risky. In this paper I argue that there are at least two reasons for disputing the use of risk aversion as a justification for discounting (...) when dealing with longterm decisions, one technical and one ethical. Firstly, I argue that technically, it implies an inconsistency between theory and practice. And secondly, I argue that discounting for uncertainty relies on a form of individualism which, while reasonable in standard microeconomic theory where an agent chooses how to spread her own consumption over her own lifetime, is inappropriate in the context of intergenerational social decisions. (shrink)

To what extent do moral judgments depend on conscious reasoning from explicitly understood principles? We address this question by investigating one particular moral principle, the principle of the double effect. Using web-based technology, we collected a large data set on individuals' responses to a series of moral dilemmas, asking when harm to innocent others is permissible. Each moral dilemma presented a choice between action and inaction, both resulting in lives saved and lives lost. Results showed that: (1) patterns of moral (...) judgments were consistent with the principle of double effect and showed little variation across differences in gender, age, educational level, ethnicity, religion or national affiliation (within the limited range of our sample population) and (2) a majority of subjects failed to provide justifications that could account for their judgments. These results indicate that the principle of the double effect may be operative in our moral judgments but not open to conscious introspection. We discuss these results in light of current psychological theories of moral cognition, emphasizing the need to consider the unconscious appraisal system that mentally represents the causal and intentional properties of human action. (shrink)

This paper investigates the relationship between economic theory and theories of justice in the design of public policy. In particular, it focuses on the role of mechanism design in policy contexts beset with issues of social, racial and distributive justice. Economists’ involvement in redesigning Boston’s algorithm for allocating K-12 students to public schools serves as an instructive case study. The paper draws on the distinction betweenideal theoryandnon-ideal theoryin political philosophy and the concept ofperformativityin economic sociology to argue that mechanism design (...) can enact elaborate ideal theories of justice. Anormative gapthus emerges between the goals of the policymakers and the objectives of economic designs. As a result, mechanism design may obstruct stakeholders’ avenues for normative criticism of public policies, and serve as a technology of depoliticization. (shrink)

In this essay I dispute the widely held view that utility theory and decision theory are formalizations of instrumental rationality. I show that the decision theoretic framework has no deep problems accommodating the ?reasonable? qua a preference to engage in fair cooperation as such. All evaluative criteria relevant to choice can be built into a von Neumann?Morgenstern utility function. I focus on the claim that, while rational choice?driven agents are caught in the Pareto?inferior outcome, reasonable agents could ?solve? the PD (...) and cooperate. Not so, I argue. If reasonable people find themselves in PD situations they too would follow the dominant ?defect? strategy. The difference between instrumentally rational agents and those who are also reasonable is not that they would behave differently in Prisoner?s Dilemmas, but that reasonable people are more successful at avoiding the Prisoner?s Dilemma and tend to play more cooperative games. (shrink)

By considering what we identify as a problem inherent in the ‘nature of the firm’—the risk of abuse of authority—we propound the conception of a social contract theory of the firm which is truly Rawlsian in its inspiration. Hence, we link the social contract theory of the firm with the general theory of justice. Through this path, we enter the debate about whether firms can be part of Rawlsian theory of justice showing that corporate governance principles enter the “basic structure.” (...) Finally, we concur with Sen’s aim to broaden the realm of social justice beyond what he calls the ‘transcendental institutional perfectionism’ of Rawls’ theory. We maintain the contractarian approach to justice but introduce Sen’s capability concept as an element of the constitutional and post-constitutional contract model of institutions with special reference to corporate governance. Accordingly, rights over primary goods and capabilities are granted by the basic institutions of society, but many capabilities have to be turned into the functionings of many stakeholders through the operation of firms understood as post-constitutional institutional domains. The constitutional contract on the distribution of primary goods and capabilities should then shape the principles of corporate governance so that at post-constitutional level anyone may achieve her/his functionings in the corporate domain by exercising such capabilities. In the absence of such a condition, post-constitutional contracts would distort the process that descends from constitutional rights and capabilities toward social outcomes. (shrink)

Agritourism activities have gained importance as a mechanism for some farmers to broaden their sources of income. As businesses have pursued agritourism activities, they have been concerned about liability for personal injuries of participants. In some states, providers of agritourism activities have presented legislators with ideas for an agritourism statute to limit liability for injuries resulting from inherent risks. Four new agritourism statutes have been enacted, while six other states have adopted alternative liability provisions that may apply to some agritourism (...) providers. The agritourism statutes provide an affirmative defense to providers to eliminate liability for inherent-risk injuries. An analysis of the statutory provisions shows legislatures making choices on the assignment of liability for accident injuries and the ability of providers to obtain releases from negligence. Because the agritourism statutes impose prerequisites and do not stop meritless lawsuits, they do not offer much assistance to agritourism providers. An evaluation of policy issues suggests that legislatures might consider additional options to address agritourism providers’ concerns. (shrink)

The purpose of this research paper is to do reflection on the importance of the preservation of the justice in the peace talks in Colombia for that serve the construction a better country and a better society of the post-conflict. To achieve it is necessary to revise the justice concepts of redress of Adam Smith and associate it with the concept of utilitarianism of John Stuart Mill as search for the general happiness. The investigation go to do a traceability exhaustive (...) of the Peace Accords in Colombia to compare them with those achieved by other societies of the post-conflict in two countries in Europe and one from Latin America. The research conclude in the need of a peace agreement respectful of the right victims and territories affected by the armed conflict. An agreement to reduce as far as possible the not social satisfactions about Colombian political and justice institutions in the future. (shrink)