Kuhn and Moresi have proposed a useful taxonomy for classifying prisoners' dilemmas. This comment is concerned with K&M's observation that legal penalties for defection can transform PDs into cooperative games, and their argument that the role of the law may vary depending on how the PD is classified by their taxonomy. The purpose of this note is to support K&M's analysis by demonstrating that the law of damages, as understood by economic analysis, already performs the function that K&M assign to (...) legal penalties for defection. (shrink)

Modern law and economics received much of its impetus from Ronald Coase's analysis in ‘The Problem of Social Cost,’ and a goodly amount of that comes from the Coase theorem, which states that, absent transaction costs, externalities will be efficiently resolved through bargaining. The fact that the analysis that came to be codified in the Coase theorem was an exercise in pure fiction on Coase's part did not deter the erection of a substantial edifice of positive and normative analysis on (...) this foundation, nor, for that matter, has subsequent elaboration of Coase's intent done anything to abate the interest in the theorem and its implications. (shrink)

This paper considers the tension between timelessness and timeboundedness in legal interpretation, examining parallels between sacred texts and secular law. It is argued that familiar dualities such as those between statute and judge-made law, law and equity, written and spoken discourse, dictionary meaning versus intended or contextual meaning, can be examined using this timeless/timebounded framework. Two landmark English cases, DPP v Shaw (1961) and R v R (1991) are analyzed as illustrating contrasting aspects of the socio-legal politics of “reasoning backwards”. (...) The related temporal distinction between ex ante and ex post points of view is examined both within legal theory and as a key issue for linguistic and semiotic systems. The argument is made that this distinction is the key to a wide range of methodological and theoretical problems in relating linguistics and semiotics to law. (shrink)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

According to an often repeated definition, economics is the science of individual choices and their consequences. The emphasis on choice is often used – implicitly or explicitly – to mark a contrast between markets and the state: While the price mechanism in well-functioning markets preserves freedom of choice and still efficiently coordinates individual actions, the state has to rely to some degree on coercion to coordinate individual actions. Since coercion should not be used arbitrarily, coordination by the state needs to (...) be legitimized by the consent of its citizens. The emphasis in economic theory on freedom of choice in the market sphere suggests that legitimization in the market sphere is “automatic” and that markets can thus avoid the typical legitimization problem of the state. In this paper, I shall question the alleged dichotomy between legitimization in the market and in the state. I shall argue that it is the result of a conflation of choice and consent in economics and show how an independent concept of consent makes the need for legitimization of market transactions visible. Footnotes1 For helpful comments and suggestions I am most grateful to Marc Fleurbaey, Alain Marciano, Herlinde Pauer-Studer, Thomas Pogge, Hans Bernhard Schmid, to seminar or conference participants in Aix-Marseille, Tutzing, Paris, and Amsterdam, and to two anonymous referees. (shrink)

On the face of it, the protracted public controversy over abortion in the United States and elsewhere might seem to rest on intractable normative questions inaccessible to economic analysis. But an influential early essay in the now sizable philosophical literature on the subject suggests otherwise. Judith Jarvis Thomson disarmingly inclined toward the view that “the fetus has already become a human person well before birth”,. presumably with all the rights pertaining thereto. She denied, however, that such rights necessarily include use (...) of the mother's womb until birth. To illustrate her point, she compared the mother's situation to that, for example, of an unwilling Good Samaritan with a uniquely suited blood type, who is forced to share a kidney for 9 months with a famous, ailing violinist who needed its use for that duration to recover. Even if the life of a human being was at stake, the assertion of rights for the violinist or the fetus, she argued, would be too degrading for either the Good Samaritan's or the mother's status as a person, where large unwanted sacrifices would be required. Reduced to its economic essentials, the argument is that the mother has property rights to her own body, including the right to expel a “trespasser”. who would die as a consequence. Thus, the antiabortion position is neatly undercut by granting its major premise while denying its conclusion. (shrink)

Given statements like these about current developments in intellectualizing about law in America it is an exciting time to look at American legal philosophy. Given the ferment in the law schools and the volume of literature in the law journals it is also a difficult task confidently to extract the main lines of current thought and adequately to assess the significance of current intellectual movements. American lawyers are inclined to point out that there is no such thing as ‘American law’. (...) Rather, in addition to Federal law and the Supreme Court's jurisdiction there are some fifty jurisdictions each with its own Constitution, Legislature and Supreme Court and consequently diversity rather than uniformity is the rule. Equally, the very idea that there is some single, coherent and widely accepted theory of law deserving description as ‘American legal philosophy’ obviously begs all manner of significant questions. (shrink)

In recent years, neuroscience has been making dramatic progress. The discipline holds great promise but also raises a number of important ethical concerns. Among these is the concern that, some day in the distant future, we will have brain scanners capable of reading our minds, thus making our inner thoughts transparent to others. There are at least two reasons why we might regret our resulting loss of privacy. One is, so the argument goes, that this would undermine our ability to (...) form intimate relations. Another is that the omnipresent gaze of others would render an authentic inner life impossible. I argue that both of these concerns are exaggerated. First, intimacy might flourish through the differential acknowledgement of knowledge as common knowledge; for example, even if I know that both a friend and my taxi driver know that I have kinky sexual fantasies, I might only acknowledge this as common knowledge and, thus, an admissible piece of conversation with my friend, and this differential acknowledgement might be enforced by norms of social interaction. Second, the gaze of others would become much less oppressive if everyone’s inner lives were transparent to everyone else. I also argue that our minds are already partly transparent to others through the use of non-neuroscience-assisted mindreading techniques and, thus, that the latter offer no distinct threat to mind privacy. I offer an additional argument for this conclusion; to wit, that our minds extend beyond our brains. (shrink)

Abstract:A marketplace of morality (MOM) is a place where individuals act under the influence of their moral desires. A MOM produces an output representing the aggregate acted-upon moral preferences of its participants. Individual behavior is influenced by POPs, or passions of propriety. People implement POP preferences when they buy stock, purchase goods and services, choose jobs and so on. Firms respond by social cause marketing and other devices which encourage customers to align their social preferences with those represented by the (...) firm. The outputs of MOM constitute an important reference point for understanding business morality. Even so, the normative status of MOM outputs must be subject to principles of universal morality. A principle of greater preponderance is offered as a means for determining when a MOM output is ethically legitimate.A theory of moral choice, based upon the concept of a MOM, may have potential for providing a unifying framework integrating moral preferences, reasoning, behaviors and organizational contexts with broader political and economic concepts. (shrink)

Our discussion of the commentaries begins, at the evolutionary level, with issues raised by our account of the evolution of morality in terms of partner-choice mutualism. We then turn to the cognitive level and the characterization and workings of fairness. In a final section, we discuss the degree to which our fairness-based approach to morality extends to norms that are commonly considered moral even though they are distinct from fairness.

In the past decade, experiments on altruistic punishment have played a central role in the study of the evolution of cooperation. By showing that people are ready to incur a cost to punish cheaters and that punishment help to stabilise cooperation, these experiments have greatly contributed to the rise of group selection theory. However, despite its experimental robustness, it is not clear whether altruistic punishment really exists. Here, I review the anthropological literature and show that hunter-gatherers rarely punish cheaters. Instead, (...) they avoid dealing with them and switch to other partners. I suggest that these data are better explained by individual selection, and in particular by partner choice models, in which individuals are in competition to be recruited by cooperative partners. I discuss two apparent problems for partner choice theories: large-scale cooperation and punishments in economic games. I suggest that rather than favouring group selection theory, these two phenomena provide evidence in favour of individual selection: (1) people produce large-scale cooperation through institutions in which punishment is not altruistic but rewarded on an individual basis; (2) punishment in experimental games can be explained without altruism and is indeed often better explained by individual interests. (shrink)

As artificial intelligence (AI) integrates across social domains, prevailing technical paradigms often overlook human relational needs vital for cooperative resilience. Alternative pathways consciously supporting dignity and wisdom warrant consideration. Integrating seminal insights from virtue and care ethics, this article delineates the following four cardinal design principles prioritizing communal health: (1) affirming the sanctity of life; (2) nurturing healthy attachment; (3) facilitating communal wholeness; and (4) safeguarding societal resilience. Grounding my analysis in the rich traditions of moral philosophy, I argue that (...) these principles scaffold sustainable innovation trajectories that consciously center shared welfare advancement over detached technical capabilities or efficiency benchmarks alone. Elucidating connections with pioneering initiatives demonstrates fragments of this vision taking embryonic shape, yet pervasive adoption remains largely aspirational to date. Fulfilling dignity-based artificial intelligence demands ongoing collective commitment beyond firms’ profit motives or governance proceduralism. My conclusions urge technology policies and priorities directed toward empowering the vulnerability of people rather than controlling the optimization of systems. (shrink)

One of the fundamental components of the concept of economic rationality is that preference orderings are “complete,” i.e., that all alternative actions an economic agent can take are comparable. The idea that all actions can be ranked may be called the single utility assumption. The attractiveness of this assumption is considerable. It would be hard to fathom what choice among alternatives means if the available alternatives cannot be ranked by the chooser in some way. In addition, the efficiency criterion makes (...) sense only if one can infer that an individual's choice reflects the best, in expected welfare terms, among all choices that individual could have made. The possibility that a rearrangement of resources could make someone “better off” without making others “worse off” can be understood only if the post-rearrangement world is comparable with the pre-rearrange-ment world. (shrink)

Experimental studies on punishment have sometimes been over-interpreted not only for the reasons Guala lists, but also because of a frequent conflation of proximate and ultimate explanatory levels that Guala's review perpetuates. Moreover, for future analyses we may need a clearer classification of different kinds of punishment.

Strong central authorities are able to effectively manage costly defection, but are unable to adequately address lesser conflicts because of limits to their ability to monitor and enforce. We argue, counterintuitively, that these limitations build cooperation and trust among subordinates: the limitations contribute to the production of order. First, limits to authority leave space for locally informed decentralized enforcement. Second, central authorities act as powerful but incompetent third parties whose threatened interventions increase incentives to cooperate and, therefore, to trust. We (...) outline the mechanisms by which a strong central authority enforces order and test their utility by considering the secondary literature on rates of conflict in strong, weak, and capricious states. We supplement this evidence, based on association, with a close examination of diverse case studies: baseball umpires, commercial contracts, and domestic disputes. By analyzing these case studies, we isolate and describe the mechanisms by which central authorities produce order in varied settings. We find that central authority may be effective, but the majority of this effectiveness derives from an indirect influence on dyadic relations rather than direct intervention. The state interacts with local communities, but each operates according to distinct logics. The particular character of their interaction produces four mechanisms useful in the production of order. We briefly explore implications for the operation of law as well as the production of generalized trust. (shrink)

Current discussions of business ethics usually only consider deontological and utilitarian approaches. What is missing is a discussion of traditional teleology, often referred to as virtue ethics. While deontology and teleology are useful, they both suffer insufficiencies. Traditional teleology, while deontological in many respects, does not object to utilitarian style calculations as long as they are contained within a moral framework that is not utilitarian in its origin. It contains the best of both approaches and can be used to focus (...) on the individual''s role within an organization. More work is needed in exposing students and faculty to traditional teleology and its place in business ethic''s discussions. (shrink)

Since the establishment of the Human Genome Project and the identification of genes in human DNA that play a role in human diseases and disorders, a long, moral and political, battle has began over the extension of IPRs to information contained in human genetic material. According to the Nuffield Council on Bioethics, over the past 20 years, large numbers of human genes have been the subject of thousands of patent applications. This paper examines whether human gene patents can be justified (...) in terms of liberal theories of morality such as natural law, personality development, just reward and social utility. It is argued that human gene patents are in conflict with fundamental principles of liberal morality and justice because they result in "genetic information feudalism". (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

Stakeholder theorists distinguish between normative stakeholders, those who gain moral standing by making contributions to the firm, and derivative stakeholders, those who can constrain the corporate association even though they make no contribution. The board of directors has the legal authority to distinguish among these stakeholder groups and to distribute rights and obligations among these stakeholder groups. To be sure, this stakeholder formulation appropriately seizes on the firm’s voluntary, associative character. Yet, the firm’s constituents contribute assets and incur risks to (...) participate in market, economic activities. And, as such, the firm’s “stakeholders” must share an imperfect language to assist in making two key economic decisions: (1) who are the legitimate and who are the derivative stakeholders; and (2) who should sit on the board? Still, stakeholder theorists have good reason to be skeptical of neoclassical economics. Its assumptions that all act opportunistically and that all can calculate rationally and fully hardly correspond to studies on the managerial experience of corporate coordination. However, advances in behavioral law and economics now provide a cogent economic logic that readily fits into a stakeholder mode. In brief, we argue that (1) the firm’s economic purpose designates legitimacy to core stakeholders, to those who add value, assume unique risk, and can incur harm; (2) the board serves as the principal who coordinates these core stakeholders to sustain competitive advantage and new wealth creation; and (3) state incorporation law, Delaware in particular, reinforces the board’s function. These, in turn, supply selection criteria for board membership. We aim to synchronize concepts from behavioral law and economics with stakeholder theory. (shrink)

There are, broadly speaking, two ways to think about rationality, as defined in the following passage: ‘Reason’ for a long time meant the activity of understanding and assimilating the eternal ideas which were to function as goals for men. Today, on the contrary, it is not only the business but the essential work of reason to find means for the goals one adopts at any given time. To use what Horkheimer called objective reason, and what others have called expressive or (...) non–instrumental reason, is to reflect on one's goals, to attempt to determine what preferences one ought to hold. On the other hand, to use what Horkheimer called subjective reason is to ‘be concerned with means and ends, with the adequacy of procedures for purposes more or less taken for granted’, that is, to be instrumentally rational. This contrast between non-instrumental and instrumental reason is at the heart of many contemporary social and philosophical disputes. 1. (shrink)

In light of recent doctrinal changes, we examine the confused state of U.S. insider trading law, identifying gaps that permit certain market participants to trade on the basis of material nonpublic information, and contrast U.S. insider trading doctrine with the European approach. We then explore the ethical implications of the status quo in the U.S., explaining why the dominant legal justifications for prohibiting classical insider trading and misappropriation—the fiduciary duty and property rights theories—fail to account for the wrongfulness of insider (...) trading by eavesdroppers and certain tippees. We refute common arguments for legalizing insider trading, including arguments that insider trading is a victimless crime and that the practice promotes efficiency. We explain why insider trading constitutes the moral wrong of cheating, grounding our theory in the legitimate expectations of market participants. Having considered Kantian deontology in other work, we find that virtue ethics theory offers a helpful albeit rough framework for assessing the morality of insider trading independent of its legality. We also find that social contract theories, with norms of equality of opportunity and moral desert, provide a compelling ethical basis for retaining, clarifying and broadening current legal prohibitions against insider trading. (shrink)

Strong reciprocity theorists claim that punishment has evolved to promote the good of the group and to deter cheating. By contrast, weak reciprocity suggests that punishment aims to restore justice (i.e., reciprocity) between the criminal and his victim. Experimental evidences as well as field observations suggest that humans punish criminals to restore fairness rather than to support group cooperation.

As the author ofJustice as Impartiality, I am not ashamed to admit that I was delighted by the liveliness of the discussion generated by it at the meeting on which this symposium is based. I am likewise grateful to the six authors for finding the book worthy of the careful attention that they have bestowed on it. Between them, the symposiasts take up many more points than I can cover in this response. I shall therefore focus on some themes that (...) cluster round the contractual device that I associate with the notion of justice as impartiality. Is it necessary? If it is not necessary is it nevertheless useful? Within an overall contractual framework is the form of contract that I propose uniquely justifiable? And does the form of contract that I defend generate the implications that I claim for it? (shrink)

The standard theories of cooperation in humans, which depend on repeated interaction and reputation effects among self-regarding agents, are inadequate. Strong reciprocity, a predisposition to participate in costly cooperation and the punishment, fosters cooperation where self-regarding behaviors fail. The effectiveness of socially coordinated punishment depends on individual motivations to participate, which are based on strong reciprocity motives. The relative infrequency of high-cost punishment is a result of the ubiquity of strong reciprocity, not its absence.

Trends in the history of social science dedicated to the study of crime and punishment are presented as a case study supporting F.A. Hayek's theory of social change. Designing effective social institutions and public policies first requires an accurate vision of how society operates. An accurate model of society further requires scientific methods uniquely suited for the study of human beings as purposeful agents and the study of human institutions as complex social phenomena. If guided by faulty methods, theories are (...) inaccurate and policy outcomes veer from their intentions. Hayek termed such outcomes "abuses of reason". Aiming to replicate the objectivity of physical sciences via formal modeling and statistical measurement, economists throughout the 20th century imposed an excessively technical vision of human decision-making. Policy failures and social problems resulted. This paper argues that the historical trends of applied social science dedicated to crime and punishment can be understood similarly. Formal modeling and statistical measurement continuously displaced methods more attuned to human intentionality and social complexity. In result, amidst a long-run history of intellectual and political change, US law enforcement and criminal punishment policies became technocratic, and outcomes became disjointed from their stated intentions to promote social order and welfare. (shrink)

Any ethical argument involving the problems of access to assisted reproductive technologies should entail the discussion of the decision protocol and consider the individual deliberating on the appropriateness of these remedies from the point of view of self and community. Yet, arguments based on patients' own moral calculations are rare in the bioethics literature. The moral voice behind most discourses concerning ARTs is that of an outwardly independent spectator, who nonetheless proceeds to justify a personally significant worldview in the utilization (...) of these resources. Investigators grounded in social and legal sciences have offered relevant arguments in this regard, but because their discourses are derived from research protocols specific to their respective disciplines, they fail to provide a general rationale applicable to moral deliberation. (shrink)

If it is accepted that the real marketplace does not necessarily distribute wealth in the manner that the ideal market would have done, and that societal institutions have an obligation to bring the real and ideal market distributions into accord, then it can be argued that economic actors have a responsibility to consider the effects of their activities on the distribution of wealth in society. This paper asserts that businesses have a responsibility to consider the wealth distribution effects of their (...) wealth-creating decisions. We use arguments from moral economics and Catholic social teaching to support this assertion, deriving decision principles that we apply to the Starbucks fair trade coffee case. (shrink)

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from (...) both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

In the history of liberal theories of property, the predominant model deduces a right to highly unequal amounts of property from a premise that the person is primarily independent and self‐determined. But modem social theory, communitarianism and critical legal theory have generated strong support for an alternative premise of social self‐determination of the person. These theories have not, however, adequately explored the logical implications of social personality for the justifiable degree of equality of income under property right. This study reasons (...) a right to some significant equalization of income from a premise that the individual is socially self‐determined. The supporting argument develops a different concept of social personality than found in prevailing social and communitarian theories. With regard to property, it is particularly important to conceptualize the formation of the individual by and within the system of economic relations. The personological premises are also developed differently from Marx's analysis, which overemphasizes the production side of the economy. The present analysis examines the individual in the consumption side as well. But in contrast to the subjective‐individualist conception of the consumer in neoclassical economic theory, we will utilize a conception of socially self‐determined consumer wants and self‐seeking. This social‐personological premise proves to have strong egalitarian implications for the distribution of income under property rights. (shrink)

Rent control is an economic abomination. It diverts investments away from residential rent units, it leads to their deterioration, it is responsible for urban decay such as in the South Bronx, it does not help poor tenants, it is a horrendous means of income redistribution. Yet this economic regulation is beloved of intellectuals (hot beds of pro rent control sentiment are Berkeley, Ann Arbor and Cambridge) particularly in the legal and philosophical communities. The present article is dedicated to an exploration (...) and rejection of the arguments in behalf of rent control which emanate from this source. (shrink)

Given statements like these about current developments in intellectualizing about law in America it is an exciting time to look at American legal philosophy. Given the ferment in the law schools and the volume of literature in the law journals it is also a difficult task confidently to extract the main lines of current thought and adequately to assess the significance of current intellectual movements. American lawyers are inclined to point out that there is no such thing as ‘American law’. (...) Rather, in addition to Federal law and the Supreme Court's jurisdiction there are some fifty jurisdictions each with its own Constitution, Legislature and Supreme Court and consequently diversity rather than uniformity is the rule. Equally, the very idea that there is some single, coherent and widely accepted theory of law deserving description as ‘American legal philosophy’ obviously begs all manner of significant questions. (shrink)

Clinical research under the usual regulatory constraints may be difficult or even impossible in a public health emergency. Regulators must seek to strike a good balance in granting as wide therapeutic access to new drugs as possible at the same time as gathering sound evidence of safety and effectiveness. To inform current policy, I reexamine the philosophical rationale for restricting new medicines to clinical trials, at any stage and for any population of patients (which resides in the precautionary principle), to (...) show that its objective to protect public health, now or in the future, could soon be defeated in a pandemic. Providing wider therapeutic access and coordinating observations and natural experiments, including service delivery by cluster (wedged cluster trials), may provide such a balance. However, there are important questions of fairness to resolve before any such research can proceed. (shrink)

Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” the (...) view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges. (shrink)

In the past few years, environmental activists and some academic studies of environmental political issues have portrayed environmental protection as a new social consensus. This view has some, though limited, capacity for explaining the controversial character of many environmental protection issues and the frequent losses that environmental activists experience in political struggles. In an effort to clarify this seeming conundrum, the author delineates the core of the societal consensus thesis’ best explanation for the controversial character of many environmental policy decisions. (...) This explanation is contrasted with explanation that draws on conflict among three coherent rival environmental perspectives in contemporary political life. These environmental views are integral, if frequently unrecognized, aspects of familiar general social perspectives distinguished by contrasting principles, values, and practical objectives. A strategy is designed to facilitate responsible environmental protection legislation in light of these three rival perspectives. (shrink)