Wittgenstein taught us that there could not be a logically private language— a language on the proper speaking of which it was logically impossible for there to be more than one expert. For then there would be no difference between this person thinking she was using the language correctly and her actually using it correctly. The distinction requires the logical possibility of someone other than her being expert enough to criticize or corroborate her usage, someone able to constitute or (...) hold her to a standard of proper use. I shall explore the possibility of something opposite- sounding about laws, namely, that there could in principle be laws whose existence, legitimacy, goodness, and efficacy depend upon their being private, in this sense: their existence is kept secret from those who legitimately benefit from the laws and yet who would misguidedly destroy them were they to come to know of them; and it is kept secret from those who would illegitimately benefit from being able to circumvent the laws, and who could circumvent them if they knew of them. The secrecy of the laws increases their efficacy against bad behavior, and since were the public to come to know of these laws the public would lose its nerve and demand that the laws be rescinded, it prevents the public from destroying laws that are in fact in the public interest. These laws are therefore in a way logically private: they cannot at the same time exist, have the foregoing virtues, and be public. After proposing conditions under which such laws ought to be enacted, I moot logical objections to the very idea that there could be such laws, practical objections to their workability, and moral objections to their permissibility. I conclude by suggesting that, while we normally think of secret laws as creatures of the executive branch, things functionally equivalent to secret laws could also be created by other branches of government and societal institutions, and that all of this would be compatible with the form of sovereignty that is democratically grounded in the will and interests of the people. (shrink)

The regulation of the interfaces of private and public interests is a central and recurrent issue of modern law. The centrality of the distinction and the manifold conceptual and practical problems associated with it has moreover been exacerbated over the past fifty years through the dominance of the twin-episteme of law constituted by law and economics and human rights law. Against this background, an alternative approach to and concept of law, transformative law, is briefly introduced. An approach which implies (...) replacing the notions of private and public interests with the concepts of legally constituted public power and societal power. In order to analyse the potential and limits of transformative law, five legal phenomena, central to the other contributions to this special issue, are analysed: public interest litigation; legal mobilisation in the preliminary ruling procedure; bankruptcy proceedings; third-party litigation and the Meta Oversight Board. (shrink)

This paper is about why voluntary associations, such as churches, unions and political parties, are subject to natural justice requirements in common law: in other words, why they are required to treat their members fairly. These requirements are typically imposed (under the name of procedural fairness) by public law on exercises of state authority, but voluntary associations do not exercise state authority. Voluntary associations are set up in private law, as structures of property and contract, but property and contract (...) law do not ordinarily require rights to be exercised in accordance with natural justice. What is needed is an account which locates voluntary associations within private law while adverting to what they have in common with the state: that they make and apply rules to facilitate human interaction. I propose such an account, drawing on an idea from Lon Fuller. Natural justice requirements on voluntary associations are grounded in the rule of law. (shrink)

Can the best arguments for a privation theory of evil be parodied, with equal plausibility, as arguments for a privation theory of good? The privation theory of evil claims that evil has no positive existence, and it is but a privation of good. The privation theory of good claims the opposite. I approach this topic as one element in the so-called evil-God Challenge. Stephen Law has argued that the epistemic support for belief in an omniscient, omnipotent, and morally perfect God (...) (theism) is on a par with the epistemic support for belief in an omniscient, omnipotent, but completely evil-God (maltheism). In fact, he concludes, the arguments for an evil God are symmetrical with, and isomorphic to, those for a good God. The privation theory of evil has often been used to defend theism against the argument from evil. Thus, part of the evil-God Challenge is to evaluate arguments for the privation theory of evil for their vulnerability to maltheist parody. I consider a broad range of arguments for the privation theory of evil, and I argue that most of them are vulnerable to parodic neutralization. Furthermore, I argue that although the thesis of the convertibility of being and goodness is often held to entail the privation theory of evil, or to be entailed by it (or to be equivalent to it), it is independent of the privation theory. I do find that David Oderberg’s recent argument for the privation theory of evil resists any easy maltheist parody, but I argue that it has a defect. I sketch an argument according to which his good-as-fulfillment account is compatible with a perfectly evil god. My tentative conclusion is that the privation theory of evil enjoys little more plausibility than does the privation theory of good. (shrink)

Surrogacy involves a private agreement whereby a woman who gestates a child attempts to surrender her (putative) moral right to become the parent of that child such that another person (or persons), of the woman’s choice, can acquire it. Since people lack the normative power to privately transfer custody, attempts to do so are illegitimate, and the law should reflect this fact.

A central assumption in much contemporary scholarship is that a central shift has taken place over the course of the last four decades: a shift from a world largely centered on public authority to a world that is increasingly dominated by private authority. The central expression of this shift is seen to be a concurring move from public to private law and thus from legislation to contract as the central legal instrument structuring economic as well as other social (...) processes. While developments in this direction can certainly be observed, this article provides a more nuanced perspective. Outlining a long-term historical perspective, this article reconstructs the manifold and volatile dynamic between institutionalized forms of public and private authority. It does soon the basis of the argument that, in the course of this evolutionary process, the very function and meaning of both public and private authority has been fundamentally altered. This alteration implies the transformation of both dimensions into functionally limited and more specific phenomena. With this background, it becomes possible to argue that societal evolution is characterized by a dual expansion of both public and private forms of authority. The starting point is an understanding of authority as condensed power. Asymmetric relations implying either direct or indirect forms of domination are observable throughout society and are as such an intrinsic element of all social relations and processes. Authority is, however, based on a particular institutionalization of power, typically delineated and condensed with the help of legal instruments. Under radical modern conditions, law becomes constitutive for authority to the extent that one might argue that no form of authority exists outside its legal form. With this background, the article argues that the pre-1945 world at the local, national, and transnational level of world society was characterized by a relative dominance of private forms of authority. The process leading to state-based modern public law gaining not only a formal but also a factual capacity to structure societal processes was a century-long process: a process which implied an epic struggle aimed at undermining and eradicating alternative centers of public and private authority in society. It was, however, a first in the mid-twentieth century that an outright breakthrough of this claim and aspiration could be observed. The implied a respecification of public and private authority that remains central to our understanding of authority to this day. (shrink)

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...) revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can (...) be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)

This book develops the law of political economy as a new field of scholarly enquiry. Bringing together an exceptional group of scholars, it provides a novel conceptual framework for studying the role of law and legal instruments in political economy contexts, with a focus on historical transformations and central challenges in both European and global contexts. Its chapters reconstruct how the law of political economy plays out in diverse but central fields, ranging from competition and consumer protection law to labour (...) and environmental law, giving a comprehensive overview of the central challenges of the law of political economy. It also provides a sophisticated and multifaceted framework for further enquires while outlining the contours of new law of political economy. (shrink)

Since the 1990s the effects of globalization on law and legal developments has been a central topic of scholarly debate. To date, the debate is however marked by three substantial deficiencies which this chapter seeks to remedy through a reconceptualization of global law as a law of inter-contextuality expressed through inter-legality and materialized through a particular body of legal norms which can be characterized as connectivity norms. The first deficiency is a historical and empirical one. Both critics as well as (...) advocates of ‘non-state law’ share the assumption that ‘law beyond the state’ and related legal norms have gained in centrality when compared with previous historical times. While global law, including both public and private global governance law as well as regional occurrences such as EU law, has undergone profound transformations since the structural transformations which followed the de-colonialization processes of the mid-twentieth century, we do not have more global law relatively to other types of law today than in previous historical times. The second deficiency is a methodological one. The vast majority of scholarship on global law is either of an analytical nature, drawing on insights from philosophy, or empirically observing the existence of global law and the degree of compliance with global legal norms at a given moment in time. While both approaches bring something to the table they remain static approaches incapable of explaining and evaluating the transformation of global law over time. The third deficiency is a conceptual-theoretical one. In most instances, global law is understood as a unitary law producing singular legal norms with a planetary reach, or, alternatively, a radical pluralist perspective is adopted dismissing the existence of singular global norms. Both of these approaches however misapprehend the structural characteristics, function and societal effects of global law. Instead a third positon between unitary and radical pluralist perspectives can be adopted through an understanding of global law and its related legal norms as a de-centred kind of inter-contextual law characterised by inter-legality. (shrink)

This essay focuses on the interrelationship of regulation and private life in human rights. It argues three main points. (1) Article 8 connects the question of protection of private lives and privacies with the question of their management. Thus, Article 8 orients regulatory practices to private lives and privacies. (2) Article 8’s holders are autonomous to the extent that laws respect their private lives and privacies. They are not autonomous in a ‘pre-political’ sense, where we might (...) expect legal rules to protect an already autonomous private life or privacy. (3) Article 8 does not simply prohibit or permit acts. In certain cases, it also ‘enables’ acts. Then, this essay introduces the idea of oikopolitics. This idea allows us to capture these three points in a useful manner. By this idea, this essay means the context (a) where the interpretation of privacy reaches out to broader social practices and norms and (b) where the status of rights-holders living their private lives makes them objects of attention. (shrink)

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. -/- No one should be neutral in relation to cruelty. Eminently, cruelty in criminal (...) law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences. -/- However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing. -/- What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for legal (...) regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

This essay offers a standard by which to assess the feasibility of market anarchism. In anarchist thought, the concept of feasibility concerns both the ability and the willingness of private defense agencies to liberate their clients from state oppression. I argue that the emergence of a single stateless pocket of effective, privately-provided defense for a “reasonable” length of time is sufficient to affirm feasibility. I then consider the failure of private defense agencies to achieve even this standard. Furthermore, (...) I identify five possible explanations for the conspicuous absence of private defense agencies. These explanations are entrepreneurial, technological, or economic in nature, or result from a lack of consumer demand or a lack of incentive for violence specialists to refrain from aggression. Of these, only an economic deficiency renders anarchism intrinsically unworkable. (shrink)

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and eco-activist Vandana (...) Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)

The status of the laws of nature in Hobbes’s Leviathan has been a continual point of disagreement among scholars. Many agree that since Hobbes claims that civil philosophy is a science, the answer lies in an understanding of the nature of Hobbesian science more generally. In this paper, I argue that Hobbes’s view of the construction of geometrical figures sheds light upon the status of the laws of nature. In short, I claim that the laws play the same role as (...) the component parts – what Hobbes calls the “cause” – of geometrical figures. To make this argument, I show that in both geometry and civil philosophy, Hobbes proceeds by a method of synthetic demonstration as follows: 1) offering a thought experiment by privation; 2) providing definitions by explication of “simple conceptions” within the thought experiment; and 3) formulating generative definitions by making use of those definitions by explication. In just the same way that Hobbes says that the geometer should “put together” the parts of a square to learn its cause, I argue that the laws of nature are the cause of peace. (shrink)

How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. (...) the law where the case happens to arise. But this analysis does not capture international law. This is, or appears to be, a distinct legal order that is certainly not the law of a distinct nation or a people but aspires to cover the whole of the world and – perhaps surprisingly – does seem to meet many of the ordinary criteria of a legal order. This review essay discusses two recent attempts at accommodating international law, Regulating Jurisdictional Relations Between National and International Courts, by Yuval Shany and A Theory of Interpretation of the European Convention of Human Rights, by George Letsas. In their own ways both books outline a ‘substantive’ theory of international law, which is to be welcomed. (shrink)

This essay offers a standard by which to assess the feasibility of market anarchism. In anarchist thought, the concept of feasibility concerns both the ability and the willingness of private defense agencies to liberate their clients from state oppression. I argue that the emergence of a single stateless pocket of effective, privately-provided defense for a “reasonable” length of time is sufficient to affirm feasibility. I then consider the failure of private defense agencies to achieve even this standard. Furthermore, (...) I identify five possible explanations for the conspicuous absence of private defense agencies. These explanations are entrepreneurial, technological, or economic in nature, or result from a lack of consumer demand or a lack of incentive for violence specialists to refrain from aggression. Of these, only an economic deficiency renders anarchism intrinsically unworkable. (shrink)

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...) This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints. (shrink)

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one. Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use (...) a term John Ruggie coined. The concerns have also helped nationalistic movements to gain power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue, we will show that the retreat-of-the-state thesis as well as the return-of-the-state thesis shares the same shortcomings. They conflate state and authority. As a consequence, both theses underestimate important transformations of authority that have taken place since the end of the “short 20TH century,” to use Eric Hobsbawm's periodization. With this special issue, we seek to contribute to a more nuanced analysis of the transformation of authority. The issue is the outcome of a conference that took place at the Copenhagen Business School in 2015, hosted by the research project ‘Institutional Transformation in European Political Economy: A Socio-Legal Approach’ and funded by the European Research Council. (shrink)

This paper examines Plato’s conception of shame and the role intoxication plays in cultivating it in the Laws. Ultimately, this paper argues that there are two accounts of shame in the Laws. There is a public sense of shame that is more closely tied to the rational faculties and a private sense of shame that is more closely tied to the non-rational faculties. Understanding this division between public and private shame not only informs our understanding of Plato’s moral (...) psychology, but his political and ethical theory as well. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, (...) courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

Joseph Newhard (2017) argues that a libertarian anarchist society would be at a serious military disadvantage if it extended the nonaggression principle to include potential foreign invaders. He goes so far as to recommend cultivating the ability to launch a nuclear attack on foreign cities. In contrast, I argue that the free society would derive its strength from a total commitment to property rights and the protection of innocent life. Both theory and history suggest that a free society would be (...) capable of defending itself, and indeed that it would probably use other means to avoid military conflict altogether. (shrink)

Plato’s attitude towards women in his major political works, the Republic and Laws, is complex. On the one hand, Plato argues that in well-run cities, women should hold positions of rule; but on the other, he suggests that women are inferior to men with respect to virtue. To reconcile these conflicting attitudes, some scholars argue that Plato’s progressive proposals are about women as they could be given the right education and environment, while his derogatory comments are about women as they (...) are. Surprisingly, however, commentators who defend this line of thought fail to identify which aspect or aspects of women’s current social position is the problem. I argue that a central problem is women’s role in the private family. More specifically, I argue that Plato thinks the institution of the private family and household is an impediment to virtue; since the private family and household is the primary domain of women, they will be particularly susceptible to its ill effects. In short, individuals’ characters are shaped by the institutions they inhabit; the private family and household is a character-shaping institution that is the primary domain for women, and as a result their characters will be shaped for the worse. (shrink)

Liberal theories of justice have been rightly criticized for two things by care theorists. First, they have failed to deal with private care relations’ inherent (inter)dependency, asymmetry and particularity. Second, they have been shown unable properly to address the asymmetry and dependency constitutive of care workers’ and care-receivers’ systemic conditions. I apply Kant’s theory of right to show that current care theories unfortunately reproduce similar problems because they also argue on the assumption that good care requires only virtuous (...) class='Hi'>private individuals. Giving up this assumption enables us to solve the problems regarding both private care relations and systemic injustice. (shrink)

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one. Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use (...) a term John Ruggie coined. The concerns have also helped nationalistic movements to gain power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue, we will show that the retreat-of-the-state thesis as well as the return-of-the-state thesis shares the same shortcomings. They conflate state and authority. As a consequence, both theses underestimate important transformations of authority that have taken place since the end of the “short 20TH century,” to use Eric Hobsbawm's periodization. With this special issue, we seek to contribute to a more nuanced analysis of the transformation of authority. The issue is the outcome of a conference that took place at the Copenhagen Business School in 2015, hosted by the research project ‘Institutional Transformation in European Political Economy: A Socio-Legal Approach’ and funded by the European Research Council. (shrink)

This chapter discusses major theories of domestic justice in the context of South African Constitutional, statutory and case law. It begins by considering when it is permissible for legislators to restrict civil liberty. South Africa's Parliament has criminalised prostitution, liquor sales on Sundays and marijuana use, actions that few liberals would say should be illegal. However, South African law permits abortion, gambling and homosexual relationships, which many conservatives would criminalise. Is there any deep inconsistency here? Should South Africa become more (...) liberal or less? Then, this essay takes up the issue of the way the law ought to govern the distribution of personal property such as houses, TVs and money. Is it permissible for the state to force those who have acquired wealth without using force or fraud to give some of it to those with less? Libertarians say that it is not permissible, while redistributivists say that it is. If the latter are correct, are wealthy South Africans giving their fair share, and is the South African state redistributing it in the right way? Next, the discussion considers whether the law should protect private property, something that capitalists affirm and socialists deny. Despite its socialist disposition before the end of apartheid, the ANC has decisively promoted private ownership of the means of production. Has this been appropriate? Is there a 'third way' between the communism of the East and the capitalism of the West that South Africa should pursue? The chapter concludes by providing a brief summary of the use of legal coercion in the new South Africa along with readings for further consideration. (shrink)

Democratic transitions of Eastern countries brought about the need to shifting from eastern into western paradigms. Transitioning into western models of media, more specifically to the public system of broadcasting became a prerequisite for achieving the EU status for Eastern European transitioning countries. It has been twelve years since Albania entered the process of transformation from being a State TV towards becoming a Public Television. The article aims to provide a theoretical framework of public television networks in western countries pointing (...) to the pertaining relationships with their political systems. Using this methodology, the article evaluates the developmental process of RTSH, and traces the evolution of certain fundamental laws to determine that political elites have not put forth any efforts to reform laws to establish self-regulatory instruments and guarantee the media independence as a self regulated institution. Despite international recommendations and internal pressures for change, the practices in the area of public network television services have served the private interest of political parliamentary forces. Using the Hallin and Mancini comparative models for media, we established that efforts towards reformation, the changes of Albanian public television are not guided towards a liberal democratic model; instead they resemble a Mediterranean or polarized system. Political arbitration in choosing key institutions that ensure self regulation and the direction of public service broadcasting reflects similarities with the Italian model of Lottizzazione.However, the design of hybrid laws whose structures and functions do not serve public interests, but instead ensure the interest of political elites, is not a formula that guarantees public service broadcasting. By choosing to pursue the old trend of TVSH’s broadcasting methods, politics is channeling the future of public service broadcasting towards a polarizing model. The approach that would allow a liberalization of Public Service Broadcasting, demands a political emancipation and consensus on this particular issue. For now, the sings of consensus are nowhere to be seen, and as such the fate of public service broadcasting remains in a pending status. One of the main consequences in this process, remains the under informed public that is a vital element in a viable democracy. In this case, society becomes the victim of an autocratic system, perpetually stuck in a vicious cycle against democratic interest. (shrink)

A Balanced Economic Model: The Feedback Loop Between Public and Private Sectors with MMT as a Stabilizing Mechanism -/- Introduction -/- Modern capitalism thrives on competition, profit motives, and consumer demand. However, the system is flawed because it allows extreme wealth inequality, market instability, and frequent economic crashes. Advertising, as an essential part of capitalism, manipulates consumer behavior to sustain profits. While this fuels economic growth, it also distorts the real needs of society. -/- A better alternative Is a (...) hybrid economic model where government-created jobs, social safety nets, and free public services coexist with a profit-driven private sector. The key to making this work is a feedback loop mechanism that keeps the two sectors balanced, ensuring economic stability while preventing extreme inequality and unnecessary market collapses. This essay explores how Modern Monetary Theory (MMT) can support this feedback loop economy to create a self-regulating system where both public and private sectors benefit from each other. -/- I. The Feedback Loop Between Private Companies and Government Economic Policies -/- A feedback loop mechanism is a self-regulating system where different components interact, adjust, and respond to maintain balance. In the economy, the public sector (government jobs, social safety nets, and public services) and the private sector (businesses, investments, and free markets) create a mutual dependency: -/- 1. Government Spending Creates Consumer Demand → Private Sector Growth -/- Government creates jobs with good salaries in infrastructure, education, healthcare, and technology. -/- This injects money into the economy, giving people the purchasing power to buy goods and services from private companies. -/- As demand increases, businesses grow, hire more workers, and expand operations. -/- 2. Private Sector Growth → Increases Government Revenue Without High Taxation -/- As private companies generate profits, they pay taxes and reinvest in expansion. -/- Strong consumer demand reduces the need for excessive taxation because economic growth itself funds public programs. -/- Businesses compete not only for profits but also for innovation and efficiency. -/- 3. Social Safety Nets Prevent Market Collapses -/- During recessions, government stabilizes the economy by expanding social programs (unemployment benefits, food assistance, healthcare). -/- This prevents demand from crashing, ensuring that businesses still have customers even in economic downturns. -/- As the economy recovers, government reduces spending, allowing the private sector to take the lead again. -/- This dynamic cycle ensures that economic booms and recessions are smoothed out, preventing extreme market crashes or mass unemployment. -/- II. The Role of MMT in Supporting the Feedback Loop -/- Modern Monetary Theory (MMT) provides the economic foundation for this model by proving that a sovereign government can spend money without being constrained by traditional budget rules. Unlike mainstream economic thinking, which suggests that governments must “balance the budget,” MMT argues that government spending should adjust based on economic conditions. -/- 1. Government-Backed Job Programs as an Economic Stabilizer -/- MMT allows governments to fund public jobs without relying solely on taxation. -/- If private companies cut jobs, the government can expand its workforce to absorb the unemployed. -/- When the economy stabilizes, people move back to higher-paying private jobs, reducing government spending. -/- 2. Preventing Inflation Through Resource Control -/- MMT acknowledges that inflation happens when there’s too much money chasing too few goods. -/- The government can remove excess money through targeted taxation and invest in productivity (e.g., infrastructure, education) to keep supply stable. -/- This prevents excessive inflation while keeping the economy growing. -/- 3. Continuous Money Circulation Without Debt Crises -/- Governments can print money to fund essential services, but they control inflation by investing in real production capacity (e.g., factories, renewable energy, technology). -/- This means public investment directly benefits private businesses, keeping both sectors in sync. -/- This MMT-backed feedback loop ensures that economic downturns do not lead to catastrophic business failures or mass unemployment. -/- III. The Role of Advertising in a Balanced Economic System -/- Advertising, while necessary for businesses, often manipulates consumer behavior in a way that creates artificial demand. In a feedback loop economy, advertising should be regulated to align with real consumer needs rather than exploiting psychological weaknesses. -/- 1. Ethical Advertising Policies -/- Companies should be incentivized to market based on quality and innovation rather than manipulation. -/- False advertising and monopolistic dominance should be regulated to prevent consumer exploitation. -/- 2. Consumer Education Programs -/- Public education should include critical thinking courses to help people make informed purchasing decisions. -/- This reduces the influence of manipulative advertising, ensuring that businesses compete fairly. -/- This ensures that the feedback loop remains healthy, preventing unnecessary overproduction and unsustainable consumer debt. -/- IV. Real-World Examples of a Balanced System -/- Some countries have successfully implemented elements of this feedback loop economic model: -/- Nordic Countries (Sweden, Norway, Denmark, Finland) -/- Have free healthcare, education, and social safety nets while maintaining a competitive private sector. -/- Use progressive taxation to prevent extreme inequality, ensuring that economic growth benefits everyone. -/- Germany -/- Uses government-backed vocational training programs to ensure a highly skilled workforce. -/- Strong public-private partnerships help both sectors support each other dynamically. -/- Japan -/- Government plays a major role in funding research, infrastructure, and innovation, allowing private businesses to thrive. -/- Uses state-owned enterprises strategically while ensuring a competitive private market. -/- These examples prove that a properly managed hybrid model is more resilient, fair, and stable than extreme capitalism or extreme socialism. -/- V. Conclusion: A Self-Regulating Economy for the Future -/- A feedback loop economic system provides the best of both worlds: ✔ Government ensures economic stability through public job creation and social safety nets. ✔ Private companies drive innovation and competitiveness with strong consumer demand. ✔ MMT allows government spending to adjust dynamically without unnecessary austerity measures. ✔ Advertising is reformed to encourage ethical business practices and informed consumer choices. ✔ Inflation is controlled through taxation, investment, and resource management. -/- By integrating these feedback loop mechanisms, we can create a self-regulating economic model where both public and private sectors reinforce each other, ensuring long-term stability, prosperity, and economic fairness. -/- Policy Framework for a Balanced Economic System: Global Best Practices -/- To fully integrate the feedback loop mechanism between the public and private sectors, specific policies must be implemented to ensure economic stability, innovation, and fairness. Below are real-world policy examples that demonstrate how different countries successfully manage their economies using a mix of government intervention and free market principles. -/- I. Public Job Creation as an Economic Stabilizer -/- One of the biggest issues in capitalism is economic recessions leading to mass layoffs, which then reduce consumer spending, creating a vicious cycle of economic decline. The solution is public sector job programs that absorb unemployed workers during downturns and allow them to transition back to private jobs when the economy improves. -/- Global Examples -/- ✔ United States (New Deal Programs – 1930s) -/- During the Great Depression, the U.S. government created millions of jobs in construction, public works, and conservation projects. -/- These projects boosted infrastructure while providing employment, helping to revive the economy. -/- ✔ Argentina’s Jefes de Hogar Program (2002-2006) -/- Aimed at mitigating mass unemployment during Argentina’s economic crisis. -/- The government hired unemployed citizens to work in community service, infrastructure, and public health projects. -/- Created social stability and demand for private goods, helping Argentina recover. -/- ✔ Germany’s Kurzarbeit Program (Ongoing) -/- In times of economic slowdown, the German government pays companies to keep workers employed at reduced hours rather than laying them off. -/- This prevents mass unemployment, ensuring that workers still have income and spending power. -/- Policy Recommendation: → Implement automatic public employment programs during recessions to keep demand stable and prevent economic crashes. -/- II. Social Safety Nets to Support Consumer Demand -/- A strong social safety net ensures that consumers have purchasing power even in economic downturns, keeping the private sector stable. -/- Global Examples -/- ✔ Nordic Model (Denmark, Sweden, Norway, Finland) -/- Provides free healthcare, education, and unemployment benefits, preventing extreme poverty. -/- Funded through progressive taxation, ensuring that the wealthy contribute fairly to society. -/- This creates a stable consumer base for private companies, benefiting the entire economy. -/- ✔ Universal Basic Income (UBI) Experiments (Finland, Canada, Kenya) -/- Finland tested a UBI program where unemployed citizens received a monthly payment regardless of employment status. -/- Results showed that recipients were more likely to start businesses and find better jobs, proving that social safety nets do not reduce work incentives. -/- ✔ Singapore’s Housing and Retirement System -/- The government helps citizens buy homes with public funds, ensuring stable housing. -/- A mandatory retirement savings system (Central Provident Fund) ensures that people have money after they retire. -/- These policies reduce financial anxiety, allowing people to focus on entrepreneurship and economic growth. -/- Policy Recommendation: → Implement universal healthcare, free education, and unemployment benefits to ensure that economic downturns do not collapse consumer spending. -/- III. Regulating Advertising to Align with Consumer Needs -/- Unregulated advertising manipulates consumer behavior, creating unnecessary demand and overconsumption, which destabilizes economies. Governments can regulate advertising to ensure ethical business practices. -/- Global Examples -/- ✔ European Union (Strict Advertising Laws) -/- The EU bans false advertising, ensuring that companies cannot make misleading claims about their products. -/- Certain junk food and alcohol ads are restricted to protect public health. -/- ✔ France’s Ban on Child-Targeted Advertising -/- Prevents unethical marketing towards children, reducing unnecessary consumerism. -/- ✔ Japan’s Culture of Product Quality Over Hype -/- Japanese companies emphasize product reliability and long-term value, reducing dependence on manipulative advertising. -/- Policy Recommendation: → Implement ethical advertising regulations to prevent false marketing, predatory ads targeting vulnerable consumers, and excessive consumer debt. -/- IV. Public-Private Partnerships for Innovation and Infrastructure -/- Rather than treating the government and private sector as separate entities, a well-balanced system interconnects them through public-private partnerships (PPPs) to drive innovation. -/- Global Examples -/- ✔ Germany’s Mittelstand Model (SME Support System) -/- The German government provides long-term financial support to small and medium-sized enterprises (SMEs), which are the backbone of the economy. -/- Ensures that private businesses have stable growth without excessive corporate monopolies. -/- ✔ China’s State-Led Economic Model (Strategic Government Investments) -/- The government invests heavily in infrastructure and technology, allowing private businesses to thrive with low-cost logistics and energy. -/- Balances capitalist competition with government support, ensuring stability. -/- ✔ United States (NASA & SpaceX Collaboration) -/- NASA funded SpaceX and other private space companies, leading to rapid innovation in space technology. -/- This proves that government funding can accelerate private sector breakthroughs. -/- Policy Recommendation: → Use government funding to support innovation and long-term infrastructure projects while allowing private businesses to benefit and expand. -/- V. MMT as a Tool for Economic Stability -/- Traditional economic models suggest that governments must “balance their budgets” like households, but this is a flawed concept. Modern Monetary Theory (MMT) argues that sovereign nations with their own currency (like the U.S., Japan, and the UK) can create money to fund essential services without relying on debt from private banks. -/- How MMT Works in Practice -/- ✔ Japan’s National Debt Strategy -/- Japan has one of the highest debt-to-GDP ratios in the world, yet it has no financial crisis because it borrows in its own currency. -/- Instead of austerity, Japan uses public investment to maintain economic stability. -/- ✔ U.S. Stimulus During COVID-19 -/- The U.S. government printed money to send direct payments to citizens, preventing a total economic collapse. -/- Inflation was controlled by adjusting taxation and investment in production capacity. -/- ✔ EU’s Post-COVID Recovery Fund -/- The European Union used public money to stabilize industries and workers, preventing extreme recessions. -/- Policy Recommendation: → Use MMT-based strategies to fund infrastructure, social programs, and innovation, ensuring economic stability without excessive reliance on private banking debt. -/- VI. Conclusion: Creating a Self-Regulating Economy -/- A feedback loop economy that integrates public job creation, private sector competition, social safety nets, and MMT-backed fiscal policies provides a self-regulating system that ensures: -/- ✔ Stable employment and consumer demand even during economic downturns. ✔ Innovation and competition in the private sector without excessive monopolies or market crashes. ✔ Government-funded infrastructure and social programs that benefit both workers and businesses. ✔ Ethical advertising that prevents consumer exploitation and unnecessary debt. ✔ Balanced inflation control through strategic taxation and investment. -/- By combining the best policies from different global models, we can build an economic system that minimizes business bankruptcies, prevents recessions, and maximizes innovation and economic fairness. -/- . (shrink)

Can transformative law become an ambitious program for rethinking the theoretical basis for our understanding of law and its position in society? A program which explicitly goes beyond emotion and ideology. One way of dealing with both emotion and the devotion to ideology is, as also argued by Karl Mannheim back in 1926, to deploy an analytical lens, i.e. to substitute emotion and ideology with sophisticated theorizing. A form of theorizing which only is possible if deployed while maintaining proper analytical (...) distance to the object matter. On this background one might distinguish between three models of transformative law: Instrumentalization, Political Programming or Normative Selection, with the latter providing a third way between the two hitherto dominant approaches. (shrink)

Building on the system of reason provided for by the Greek philosopher and specifically Aristotle, St. Thomas Aquinas built a comprehensive system and theory of natural law which has lasted through the ages. The theory was further developed in the Middle Ages and in the Enlightenment Ages by many a prominent philosopher and economist and has been recognized in the Modern Age. The natural law-theory and system has been repeatedly applied to the spheres of economic thought and has produced many (...) lasting contributions such as private property rights and individual rights. In recent times with the collapses of the financial system and rapid globalization, there has been a renewed interest in the application of natural law theory to economics to counter a certain anthropology and distortion of values created by a modern economic system of selfpreservation deriving its insights from the philosophies of Thomas Hobbes and Niccolo Machiavelli. (shrink)

Defenders of intellectual property rights argue that these rights are justified because creators and inventors deserve compensation for their labour, because their ideas and expressions are their personal property and because the total amount of creative work and innovation increases when inventors and creators have a prospect of generating high income through the exploitation of their monopoly rights. This view is not only widely accepted by the general public, but also enforced through a very effective international legal framework. And it (...) is endorsed by most academic researchers and commentators in this field. In this essay, I will show that the classical arguments for the justification of private intellectual property rights can be contested, and that there are many good reasons to abolish intellectual property rights completely in favour of an intellectual commons where every person is allowed to use every cultural expression and invention in whatever way he wishes. I will first give a short overview of the classical arguments for the justification of intellectual property as they are usually stated. We will then discuss the question of whether the creator or inventor deserves his de jure monopoly, by using John Christman’s categories of income and control rights to analyse property rights. The aim here is to show that it does not make sense to create control rights for abstract objects, as they are not scarce, and that there is no logical connection between the surplus which may be generated through income rights and the labour which has been put into a cultural artefact or an invention, and therefore it is not justified to grant monopoly rights on the basis of Lockean natural rights arguments for self-ownership and the just appropriation of worldly resources. As it is possible to reject Christman’s property rights categories, I will then go on to show on the basis of Richard Dawkins’ postulation of the ‘meme’ and Ludwik Fleck’s theory of the ‘thought collective’ that creative processes should be interpreted as interpersonal or collective processes, and therefore it is not justified to grant intellectual property rights to individuals on the basis of the idea that the individual who has put labour into the creative work or the invention should be the one to whom the contents of the work belong exclusively. As it is still possible to postulate the utilitarian argument that intellectual property rights are just because they increase the amount of creative works and inventions, I will argue in the last chapter that, from a libertarian as well as from an egalitarian point of view, the justification of intellectual monopoly rights on utilitarian grounds cannot be maintained. Therefore it is time to abolish the current global intellectual property law regime in favour of an intellectual commons for the good of all human beings and societies. (shrink)

_One of the strongest arguments against hate speech legislation is the so-called Argument from Political Speech. This argument problematizes the restrictions that might be placed on political opinions or political critique when these opinions are expressed in a way which can be interpreted as ‘hateful’ towards minority groups. One of the strongest free speech scholars opposing hate speech legislation is Ronald Dworkin, who stresses that having restrictions on hate speech is, in fact, illegitimate in a liberal democracy. The right to (...) express oneself freely concerning any political decision is, according to Dworkin, a core democratic principle; it is what self-governance – and hence liberal democracies – are built upon. Dworkin and many other free speech scholars based in the United States see hate speech legislation as a threat to expressing oneself freely and critically. I argue that Dworkin and other US-based free speech scholars tend to overlook actual hate speech legislation in countries where such laws have been implemented and have functioned for decades. Furthermore, I argue that the real threat against political speech lies not in hate speech legislation but rather outside of the law, namely, in private institutions such as universities and museums. Restrictions on political speech in various societal circumstances have been on the rise over the last decades – first and foremost in the US. I analyse why these restrictions on political speech are more widespread in the only Western country without laws against hate speech than they are in countries with implemented hate speech laws._ _Keywords_: political speech, hate speech, hate speech legislation, private institu-tions, universities, USA. (shrink)

The discussion on the division into public and private law (ius publicum) and private law (ius privatum) can be summarized by considering two fundamental issues: (α) the justification of the division and (β) the choice of a criterion for dividing law into public and private. When reading the texts of Polish legal philosophers, it is hard to resist the impression that they do not notice the line separating (α) and (β) and, consequently, the scale of differences between (...) these issues. This is an unacceptable state of affairs. Therefore, the main purpose of this article is to distinguish these two problems more clearly. In particular, we want to show that investigations aimed at determining whether the division between ius publicum and ius privatum is justified may abstract from which theory of division deserves to be distinguished. In practice, both problems, which can be justified both theoretically (supported only by definitions and logical means) and empirically (based on examples from legal dogmatics), are autonomous from each other. (shrink)

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. (...) Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word. (shrink)

AI companies are racing to create artificial general intelligence, or “AGI.” If they succeed, the result will be human-level AI systems that can independently pursue high-level goals by formulating and executing long-term plans in the real world. Leading AI researchers agree that some of these systems will likely be “misaligned”–pursuing goals that humans do not desire. This goal mismatch will put misaligned AIs and humans into strategic competition with one another. As with present-day strategic competition between nations with incompatible goals, (...) the result could be violent and catastrophic conflict. Existing legal institutions are unprepared for the AGI world. New foundations for AGI governance are needed, and the time to begin laying them is now, before the critical moment arrives. -/- This Article begins to lay those new legal foundations. It is the first to think systematically about the dynamics of strategic competition between humans and misaligned AGI. The Article begins by showing, using formal game-theoretic models, that, by default, humans and AIs will be trapped in a prisoner’s dilemma. Both parties’ dominant strategy will be to permanently disempower or destroy the other, even though the costs of such conflict would be high. -/- The Article then argues that a surprising legal intervention could transform the game theoretic equilibrium and avoid conflict: AI rights. Not just any AI rights would promote human safety. Granting AIs the right not to be needlessly harmed–as humans have granted to certain non-human animals–would, for example, have little effect. Instead, to promote human safety, AIs should be given those basic private law rights–to make contracts, hold property, and bring tort claims–that law already extends to non-human corporations. Granting AIs these economic rights would enable long-run, small-scale, mutually-beneficial transactions between humans and AIs. This would, we show, facilitate a peaceful strategic equilibrium between humans and AIs for the same reasons economic interdependence tends to promote peace in international relations. Namely, the gains from trade far exceed those from war. Throughout, we argue that human safety, rather than AI welfare, provides the right framework for developing AI rights. This Article explores both the promise and the limits of AI rights as a legal tool for promoting human safety in an AGI world. (shrink)

Planteamos el problema siguiente: Descartes contesta la acusación irracional de Voetius interpretando, excepcionalmente, los Evangelios y afirma que las _leyes de caridad _son _afines _a las _leyes de la amistad natural _que rigen las funciones del pastor y del profesor. Proponemos que Descartes excluye el examen de las virtudes teologales e incursiona en el derecho privado y civil para probar que Voetius no es un _verdadero _profesor, ni un _verdadero _pastor, y usurpa las atribuciones del juez. Frente a la irracionalidad, (...) la búsqueda de la verdad se despliega en el alegato jurídico. -/- Descartes and the laws of charity. Public and private law in the Letter to Voetius Abstract. We pose this problem: Descartes responds to Voetius’ irrational accusation by resorting once, on his own initiative, to Gospel, an interpretation that reviews the laws of charity as akin to the laws of natural friendship governing pastor and teacher roles. We propose that the Letter be a legal argument. Descartes has no interest in theological virtues: facing irrationality, he delves into private law to prove that Voetius is not a true teacher, or a true pastor, and encroaches on the function of judge. (shrink)

A private property account is central to a liberal theory of justice. Much of the appeal of the Lockean theory stems from its account of the so-called `enough-and-as-good' proviso, a principle which aims to specify each employable person's fair share of the earth's material resources. I argue that to date Lockeans have failed to show how the proviso can be applied without thereby undermining a guiding intuition in Lockean theory. This guiding intuition is that by interacting in accordance with (...) the proviso persons interact as free and equal, or as reciprocally subject to the `laws of nature' rather than as subject to one another's arbitrary will. Because Locke's own and contemporary Lockean conceptions of the proviso subject some persons to some other persons' arbitrary will, the proviso so conceived cannot function as it should, namely as a principle that restricts interacting persons' actions reciprocally and thereby enables Lockean freedom under law. (shrink)

In The Birthright Lottery, Ayelet Shachar subjects the institution of birthright citizenship to close scrutiny by applying to citizenship the historical and philosophical critique of hereditary ownership built up over four centuries of liberal and democratic theory, and proposing compelling alternatives drawn from the theory of private law to the usual modes of conveyance of membership. Nonetheless, there are some difficulties with this critique. First, the analogy between entailed property and birthright citizenship is not as illustrative as Shachar intends (...) it to be; second, the mechanism of the birthright privilege levy is insufficient for addressing structural impediments to growth; and third, the principle of ius nexi, while an important corrective to currently dominant principles of nationality, will likely have effects both unnecessary and insufficient to correct the injustices that Shachar identifies. In the end, the most significant improvements in the lives of the neediest persons on the planet are more likely advanced through conventional arguments for the lowering of barriers to the circulation of goods, labor, and capital. This shift in attention from opening borders to extending citizenship risks being a distraction from more effective means of addressing the injustices associated with global inequality.Dans son livre The Birthright Lottery, Ayelet Shachar soumet l’institution de la citoyenneté par droit de naissance à un examen rigoureux, en appliquant à la citoyenneté la critique philosophique et historique de la propriété héritée construite pendant quatre siècles de théorie démocratique libérale, et en proposant aux modes habituels d’attribution de la citoyenneté une alternative séduisante tirée de la théorie du droit privé. Néanmoins, cette critique comporte certaines difficultés. Premièrement, l’analogie entre la transmission de la propriété par l’institution de la taille et la citoyenneté par droit de naissance n’est pas aussi éclairante que le soutient Shachar ; deuxièmement, le mécanisme de la taxe sur le privilège du droit de naissance est insuffisant pour s’attaquer aux obstacles structurels à la croissance ; et troisièmement, le principe du jus nexi, bien qu’on puisse le considérer comme un important correctif du principe de nationalité actuellement dominant, aura vraisemblablement des effets à la fois non nécessaires et insuffisants pour corriger les injustices que Shachar identifie. En fin de compte, les améliorations les plus significatives dans la vie des personnes les plus démunies de la planète sont vraisemblablement mieux défendues à l’aide des arguments conventionnels en faveur d’une baisse des barrières à la circulation des biens, du travail et du capital. Ce déplacement de l’attention de l’ouverture des frontières à l’extension de la citoyenneté risque de nous distraire des moyens plus efficaces de nous attaquer aux injustices associées à l’inégalité globale. (shrink)

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses (...) the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable. (shrink)

This paper provides a critique of the contemporary notion of intellectual property based on the consequences of Wittgenstein's “private language argument”. The reticence commonly felt toward recent applications of patent law, e.g., sports moves, is held to expose erroneous metaphysical assumptions inherent in the spirit of current IP legislation. It is argued that the modern conception of intellectual property as a kind of natural right, stems from the mistaken internalist or Augustinian picture of language that Wittgenstein attempted to diffuse. (...) This view becomes persuasive once it is shown that a complete understanding of the argument against private language must include Wittgenstein's investigation of the role of the will in the creative process. It is argued that original thought is not born by decree of the will, but engendered by a public context of meaning and value. What marks a person as a genius is, therefore, according to Wittgenstein, not some sovereign capacity of conceptual world-making, but merely a propitious dose of intellectual courage. (shrink)

The process of economic globalization has over the years accelerated the pace of labour policy convergence. In the Indian context, labour law since 1991 has witnessed a paradigm shift while embracing a policy of global integration. The ambit of labour relations is now being related with private practice or the informal settings, leading to multiple concerns over labour justice and security. In compliance with global standards, the continuous emphasis upon labour flexibility characterised by flexible labour employment, performance based remuneration, (...) increasing portion of casual labour, has raised several concerns. This paper is an attempt to highlight the attempted and achieved labour law policy convergence in India, coupled with a few suggestions for balance in global national comittments towards labour welfare. (shrink)

This article raises a principled objection to the privatization of certain core police services. Whereas most of the literature critical of privatizing security services has focused on the negative consequences of doing so (corruption, waste, etc.), the argument here focuses squarely on the standing of private parties to perform police services. According to an important strain of liberal political theory, certain tasks are assigned to the state not because it is deemed to be more efficient at delivering those services (...) but simply because such services must be rendered by a party that acts in the name of the polity as a whole and not in the name of some narrower private interest. The author argues that all those policing functions – such as arrest, search, and detention – that require criminal law justification (because they involve conduct on the part of officers that is generally criminally prohibited) are of this nature. The article also summarizes the different dimensions of the larger privatization debate and traces the development of the debate about legitimate policing in the nineteenth and twentieth centuries. (shrink)

This is review of the book "Rightful Relations with Distant Strangers: Kant, the EU, and the Wider World" by Aravind Ganesh, which discusses the relevance of Immanuel Kant's legal philosophy for the European Union's exercise of extraterritorial jurisdiction. The book explores this issue from the perspectives of public international law and private law theory as well.

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this (...) aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction. -/- Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence. -/- To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it. -/- This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value. (shrink)

In retrospect of Hague convention on international sale of goods, the efforts had been poured in the initiative of UNCITRAL since 1968 triggering more welcome international treaty on the area of law. The efforts came to reality where the committee in action, comprised of 14 countries, concluded a final draft in 1978. In 1980, it was adopted as United Nations Convention on Contracts for the International Sale of Goods(CISG). While the treaty is deemed a marvellous success within the purview of (...) uniform private laws, it is also true that there arises a severe criticism. One of criticism points to imprecise and ambiguous terms CISG employs that harms the uniformity in its interpretation. However, I would support the strength of CISG that CISG can be interpreted consistently in itself in terms of its international character, which means imprecision of CISG, short coverage of hardship issues, imbalance between parties, and inept nature to commodity transactions. In support of CISG, these criticisms either overlook the intrinsic difficulties underlying production of the uniform laws or seems to be groundless on various points of views. On the other hand, the true uniform laws presuppose uniformity in the application of treaty. We can see some extent of difference in terms of the role of precedents between the common law and civil law countries. It is encouraging that the recent practice of civil law countries, including Italy, Poland, Denmark and so on, tend to cite the foreign precedents for the cases of CISG laws. Within the regime of common law countries, the rule of “stare decisis” prescribes that the national precedents should govern as binding authority while those of other common law countries function to be a persuasive authority. This means that the practice of civil law countries has considerably developed as similar to that of common law counterparts. While they seem to use foreign precedents as persuasive authority like their counterparts, or in the least accept as inspirational authority, the application of CISG grows to be made in a shared fashion for true uniform laws. This development seems to prosper at the advent of academic database as well as the contribution of CISG experts. (shrink)

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...) facto what conduct is justified and what is not. This determination is made ex ante by other institutional actors such as private fiduciaries, public officials, and sometimes, ordinary citizens caught in extraordinary circumstances. The court’s role is simply to review the validity of that prior exercise of decision-making discretion. More broadly, my study is intended to serve as a reminder of the importance of institutional structure in criminal law. It is almost always misleading to address issues in criminal law by way of abstract moral theorizing, as is often done, because this leaves out the crucial question of institutional division of labor. Before addressing the substantive aspect of particular questions—what conduct should be prohibited, justified, or excused—we must first address ourselves to the institutional questions that I have called the problems of authority, discretion, and legality. These institutional questions receive their most thorough treatment in two other areas of law: the private law of fiduciaries and public administrative law. If we wish to make progress in understanding justification defenses—and the institutional structure of criminal law more generally—I argue that it is to these areas of law that we should attend. (shrink)

This paper works out the scheme of “institutional competences” that underlies the famous Hart and Sacks Legal Process Materials first distributed in final mimeographed form in1958. The Materials were not published during the life times of their authors but were nonetheless a major influence on American legal thought from their first distribution as course materials at Harvard Law School until their abrupt fall from prominence in the early 1970s. The Materials offer the scheme as a solution to the apparent anomaly (...) in a democracy of the law making power in both public and private law of unelected judges serving long terms. The paper critiques the Hart and Sacks solution, called law making through “reasoned elaboration,” which they claimed was sharply distinct from legislative law making or administrative fiat. The paper argues that in both public and private law the materials the judge is to elaborate are characterized by contradictory internal logics. The judge has to choose between them without a meta-criterion. In cases with high stakes, extra-juristic normative orientations, whether moral theories or political ideologies, will come into play, regardless of the judge’s commitment to excluding them. The second part of the paper places Hart and Sacks in a larger historical and comparative context of efforts to solve the problem of social order by way of legal rationality. These two parts were preceded in the original paper by a long discussion, now lost but never very satisfying to me, of the Hart and Sacks theory of “private ordering” in relation to state regulatory power. I wrote the paper for extra credit in the spring of 1970 as a third year student at the Yale Law School. I’ve corrected a few typos but haven’t changed it in any other way. I never published it but it was circulated to a limited extent among Legal Process devotees. Eskridge and Frickey, editors of the Materials as published finally in 1994, credit it, along with another unpublished student paper by Roberto Unger, with hastening the demise of the Materials as a master text. The first part of this version of the paper was recently published in Droit et Philosophie, no. 13, p. 97-117 (2021). (shrink)