Philosophy of Law eJournal最新文献

{"title":"Private and Public Morality","authors":"E. Zamir, Barak Medina","doi":"10.1093/acprof:oso/9780195372168.003.03","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195372168.003.03","url":null,"abstract":"This is a chapter of a book titled Law, Economics, and Morality, which proposes to integrate threshold deontological constraints (and options) with cost-benefit analysis, thus combining economic methodology with deontological morality. The chapter discusses the claim that even if moderate deontology is the correct moral theory for individuals, consequentialism is the appropriate moral theory for legal policymakers such as legislators, judges, and regulators, and for academic policy-analysts. It refutes the argument, made in this context by Cass Sunstein and Adrian Vermeule, that the distinction between actively doing harm and passively allowing it is inapplicable in the public sphere. It similarly counters the argument that the distinction between intending harm and merely foreseeing it is only applicable in the private sphere. The chapter contends that these arguments confuse, among other things, between constraints and options and between the actor’s perspective and the perspective of an external reviewer. It ultimately rejects the alleged dichotomy between personal and public morality.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131110053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Problem with Promising","authors":"D. Owens","doi":"10.2139/SSRN.1342060","DOIUrl":"https://doi.org/10.2139/SSRN.1342060","url":null,"abstract":"Why have philosophers since Hume regarded promising as problematic? I distinguish two problems raised by Hume. The problem of the bare wrong is the problem of how it can make sense to avoid a wrong when the wrong does not affect any intelligible human interest. The problem of normative power is the problem of how something can be a wrong simply because it has been declared to be a wrong. I argue that the problem of the bare wrong is more basic. I then examine the attempts of practice theorists like Hume and Rawls to overcome the problem of the bare wrong by arguing that whenever breach of promise seems like a bare wrong, in fact human interests are adversely affected because a socially valuable practice is damaged. I argue that their various explanations cannot cover all the cases. I then formulate an assumption which is shared by all practice theorists (and others) namely the assumption that we take promises seriously because they serve our interest in social co-ordination. I argue that if this assumption were true, there need be no practice of promise-keeping for promises to bind. Furthermore, were this assumption true, promising would be a social tool that we could largely do without. And so long as promising intelligibility is in doubt (because of the problem of the bare wrong) an adherent of the social co-ordination hypothesis should assume that we largely do do without it. So anyone who gives promising a key role in human social life must reject the social co-ordination hypothesis.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130887097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Between Institutions and Culture: The UNDP's Arab Human Development Reports 2002-2005","authors":"M. Trebilcock","doi":"10.2139/ssrn.1131309","DOIUrl":"https://doi.org/10.2139/ssrn.1131309","url":null,"abstract":"The four Arab Human Development Reports 2002-2005, sponsored by the United Nations Development Program, have attracted more attention and controversy than any other official studies of development in recent years. Celebrated by many Western commentators as a courageous exercise in self-criticism by the Arab authors, the Reports have in turn been denounced by most Arab commentators in the Middle East as an exercise in self-denigration, as scapegoating Arab countries for the legacies of colonialism and Western foreign policy interventions, and as propagating an ethnocentric conception of liberal individualism. The Reports focus on three key themes: building a knowledge society; expanding civil and political freedoms; and women's empowerment. This paper argues that these Reports illuminate an important set of controversies in the broader contemporary development literature, in particular alternative conceptions of the ends of development (e.g., growth versus freedom), and the respective roles of institutions and culture in promoting and shaping developing. The paper is critical of the Reports for marginalizing the importance of economic growth in the development equation and in failing to address the dynamics of the policy reform process, hence risking espousal of an unproductive form of utopianism or universalism.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127023785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Demystifying Ancillary Winding-Up: Disapplying Local Substantive and Procedural Rules","authors":"Look Chan Ho","doi":"10.2139/ssrn.1081187","DOIUrl":"https://doi.org/10.2139/ssrn.1081187","url":null,"abstract":"The Scottish decision in Morris (Liquidator of Bank of Credit & Commerce International), Re Petition of The Bank of England is correct that an ancillary winding-up makes good sense and may disapply local procedural rules that do not serve any practical purpose. Owing to a misunderstanding of the English authorities and the principle of pari passu distribution, the Scottish court wrongly concluded that local substantive rules may not be disapplied.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129840573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The FTC and the New Paternalism","authors":"Matthew A. Edwards","doi":"10.2139/SSRN.1014652","DOIUrl":"https://doi.org/10.2139/SSRN.1014652","url":null,"abstract":"During the past decade, we have witnessed a renaissance of paternalism in legal scholarship fueled by the rise of behavioral law and economics (\"BLE\"). This paper addresses the potential impact of BLE and the \"new paternalism\" on the Federal Trade Commission's consumer protection mission. After providing a survey of some of the basic teachings of BLE, the paper reviews the fascinating political and legal history of the FTC's unfairness authority to show how a major political battle helped to transform the legal concept of unfairness from a market morality norm into a law and economics concept grounded in the concept of consumer sovereignty. The latter parts of the paper use three examples - mail-in consumer rebates, inducement of supermarket impulse purchases, and payday lending - to explore the challenges that the FTC faces if it decides to press unfairness claims based on alleged behavioral exploitation. These tasks include weighing uncertain costs and benefits of business practices, determining what harms are \"reasonably avoidable\" in cases of purported consumer irrationality, and elaborating a principle to mediate disputes between consumers' multiple selves. Given these empirical and normative challenges, and the FTC's unfairness history, one might expect the Commission to be cautious in its use of BLE and resistant to more radical strains of the new paternalism.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130144170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Self-Determination in the Palestine Context","authors":"J. Quigley","doi":"10.2139/SSRN.1015927","DOIUrl":"https://doi.org/10.2139/SSRN.1015927","url":null,"abstract":"The conflict between Hamas and the PLO-affiliated Palestinian parties has raised anew the question of self-determination, and what it means in regard to the conflicting claims to territory in Israel/Palestine. Self-determination emerged as a concept in the international community in the early twentieth century. Whether it remained a political idea only, or whether it became solidified as a norm of international law has been contested. The better side of this argument is that self-determination became accepted as a legal norm, through recognition of it by states and by international organizations.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127250600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Certainty and Predictability at Common Law (La Securite Juridique en Common Law)","authors":"Audrey Guinchard","doi":"10.2139/SSRN.1290038","DOIUrl":"https://doi.org/10.2139/SSRN.1290038","url":null,"abstract":"This paper, in French, was presented at the conference Securite juridique et droit economique (Legal Certainty and Economic Law) organized by the CREDECO of Nice (France) under the direction of Prof. Laurence Boy, Siriainen and Racine, on October 26, 2006.The objective is to describe the specific features of legal certainty in the Common Law World while comparing with the French Law understanding of the concept. The issue starts with a problem of translation as \"legal certainty\" in English is a much narrower concept that that of \"Securite Juridique\".","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"268 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122176364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Never Get Out'A the Boat: Stenberg V. Carhart and the Future of American Law","authors":"J. Breen, Michael A. Scaperlanda","doi":"10.2139/SSRN.871543","DOIUrl":"https://doi.org/10.2139/SSRN.871543","url":null,"abstract":"In this short essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law. The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to \"terminate.\" The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should \"never get out'a the boat\" unless you are prepared to \"go all the way.\" In the essay, we argue that in Stenberg v. Carhart the Supreme Court \"got out'a the boat\" and went \"all the way.\" Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court's opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with \"the difficult question of when life begins.\" In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle. Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court's treatment of the right to free speech as well as its decisions concerning capital punishment. We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that three decisions striking down the recent federal ban on partial bir","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123535604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}