The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law.

This revised edition of The Idea of Private Law makes one of the major works of modern legal theory accessible to a new generation of lawyers and students. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.

This chapter contains sections titled: The Project of Formalism The Nature of Justification The Structures of Justification The Ground of Justification The Immanent Intelligibility of Law Conclusion References.

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has (...) done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism (...) with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a (...) Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity. (shrink)

. In Aristotle's account, corrective and distributive justice are not particular substantive ideals, but are rather the formal patterns that inhere in interactions and in the legal arrangements that regulate them. Corrective and distributive justice are the structures of ordering internal to transactions and distributions, respectively. The Aristotelian. forms of justice thus constitute the rationality immanent to the relation ships of mutually external beings. This article stresses Aristotle's formalism, contrasting it to modem instrumental conceptions of legal rationality, and defending it (...) against Kelsen's allegations of emptiness. The article concludes with the suggestion that corrective justice, as the conceptual pattern that makes private law what it is, can be considered the formal and final cause of private law. (shrink)

Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability. This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists. The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice." The juridical conception seeks to explicate the most general ideas implicit in (...) liability as a normative practice in which the plaintiff makes a claim against the defendant. Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties. The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those who initially rejected it. Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived. This reason for dismissing personality is insufficient. Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice. Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties. Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions. Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability. Moreover, if correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter. Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations. In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established. Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory. Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability. (shrink)

Plato's Crito is not a treatise on obedience to the law, but a dialogue whose interpretation is not determined by its surface meaning. The initial dream is not mere ornamentation; rather it points to the range of possibilities in Socrates' situation. The speeches of the Laws, with which the dialogue closes, are not intended to be philosophically cogent, since they are inconsistent with the principles laid out in the preceding conversation between Socrates and Crito. The arguments of the Laws are (...) rather directed towards Crito, Socrates' decent and unphilosophic friend. (shrink)

This chapter contains sections titled: Transfer of Value The Transfer Elements of Liability Unjustness Correctively Unjust Enrichment References.

Sustainability informs the framework for a seminar that we teach for junior and senior undergraduates entitled "The Ethics and Economics of Sustainable Societies." One of the class requirements has each student research and write a life-cycle case study, an exercise in which they trace the full, or partial, life-cycle of some product with which they are familiar. Students are expected to examine the economic, ethical, and ecological implications along each step in the life-cycle of the product. We believe that life-cycle (...) cases in general are very helpful in revealing the full economic, ethical, and ecological consequences of product development, marketing, use, and disposal. We also believe that asking students to research the product themselves provides additional pedagogical benefits. After a brief review of the philosophical case for our alternative view of corporate social responsibility, we will describe the life-cycle case method, offer several examples from our own classes, and make the case for the pedagogical benefits of this approach. (shrink)

This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work was reproduced from the original artifact, and remains as true to the original work as possible. Therefore, you will see the original copyright references, library stamps (as most of these works have been housed in our most important libraries around the world), and other notations in the work.This work is in the public domain in (...) the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work.As a reproduction of a historical artifact, this work may contain missing or blurred pages, poor pictures, errant marks, etc. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

This book has been considered by academicians and scholars of great significance and value to literature. This forms a part of the knowledge base for future generations. So that the book is never forgotten we have represented this book in a print format as the same form as it was originally first published. Hence any marks or annotations seen are left intentionally to preserve its true nature.

In “Reliabilism Leveled” Jonathan Vogel (2000) provides a strong case against epistemic theories that stress the importance of tracking/sensitivity conditions. A tracking/sensitivity condition is to be understood as some version of the following counterfactual: (T) ~p oÆ ~Bp (T) says that s would not believe p, if p were false. Among other things, tracking is supposed to express the external relation that explains why some justified true beliefs are not knowledge. Champions of the condition include Robert Nozick (1981) and, more (...) recently, Keith DeRose (1995). To my knowledge, the earliest formulation of the counterfactual condition is found in Fred Dretske’s conclusive reasons condition (1971), which says, s would not have had the reason that she does for believing p, if p were false. Vogel contends that any such counterfactual condition on knowledge will render the theory of knowledge too strong. He believes that there is at least some possible reflective knowledge that cannot satisfy the counterfactual--viz., the possible knowledge that one does not believe falsely that p. The alleged impossibility of such reflective knowledge is taken by Vogel to be a decisive objection to the tracking theories advocated by Dretske, Nozick, DeRose1 and others. The criticism finds its roots in Vogel’s earlier work (1987), and recurs in papers by Ernest Sosa (2002, 1996). Sosa suggests that the externalist idea behind tracking is on target, but that Nozick’s counterfactual is a misbegotten regimentation of the idea. In its place Sosa offers his own counterfactual “safety” condition, which he feels properly captures the externalist idea. Sosa’s counterfactual is not the topic of this paper. I mention it only to point out that the criticism that constitutes the subject of my investigation is meant to do a lot of work. In Sosa’s 1 case the criticism is meant to motivate his own counterfactual analysis, and in Vogel’s case the criticism promises to be a silver bullet against a theory that has recently found renewed life in the work of Keith DeRose.. (shrink)

Hume's Dialogues Concerning Natural Religion are still much with us. What appears to be the definitive edition was published by Professor Norman Kemp Smith in 1935 with a learned introduction which, among other things, assembled a mass of evidence pointing to the conclusion that Philo is to be identified with Hume himself, and that Hume in the Dialogues is deliberately trying to undermine the religious hypothesis. Though these conclusions have been widely accepted, Dr. B. M. Laing, in the April issue (...) of Philosophy , strenuously attacked them in an ingenious argument based in part on his already published thesis that Hume's fundamental philosophy is not really the scepticism so long assigned him. Dr. Laing takes the opportunity in passing to indicate his sympathy with the recent position of a distinguished British poet that Voltaire, also, has been traditionally abused in the assumption that on the question of religion he wrote with his tongue in his cheek. The present examination is not designed to inquire into this new mode of making the wicked pious; nor to push the question back from the Dialogues to Hume's basic philosophy; nor to press the writer's conviction [“The Enigma of Hume,” Mind , XLV pp. 334–349] that not only is Philo to be identified as Hume, but in addition, Cleanthes as Joseph Butler, and Demea as Samuel Clarke. The present purpose is solely to indicate certain unhistorical bases of Dr. Laing's attack on the more traditional view so ably championed by Professor Norman Kemp Smith. (shrink)

Hume'sDialogues Concerning Natural Religion are still much with us. What appears to be the definitive edition was published by Professor Norman Kemp Smith in 1935 with a learned introduction which, among other things, assembled a mass of evidence pointing to the conclusion that Philo is to be identified with Hume himself, and that Hume in the Dialogues is deliberately trying to undermine the religious hypothesis. Though these conclusions have been widely accepted, Dr. B. M. Laing, in the April issue of (...) Philosophy, strenuously attacked them in an ingenious argument based in part on his already published thesis that Hume's fundamental philosophy is not really the scepticism so long assigned him. Dr. Laing takes the opportunity in passing to indicate his sympathy with the recent position of a distinguished British poet that Voltaire, also, has been traditionally abused in the assumption that on the question of religion he wrote with his tongue in his cheek. The present examination is not designed to inquire into this new mode of making the wicked pious; nor to push the question back from the Dialogues to Hume's basic philosophy; nor to press the writer's conviction [“The Enigma of Hume,” Mind, XLV pp. 334–349] that not only is Philo to be identified as Hume, but in addition, Cleanthes as Joseph Butler, and Demea as Samuel Clarke. The present purpose is solely to indicate certain unhistorical bases of Dr. Laing's attack on the more traditional view so ably championed by Professor Norman Kemp Smith. (shrink)

Abstract and Introduction. This essay is an attempt to dispense with the negative aspects of Romanticism and examine whatever positive it has to offer--in the light of ideas scattered through diverse writings of Ernest Gellner.

Ernest Sosa has suggested that we distinguish between animal knowledge, on the one hand, and reflective knowledge, on the other. Animal knowledge is direct, immediate, and foundationally structured, while reflective knowledge involves a knower's higher‐order awareness of her own mental states, and is structured by relations of coherence. -/- Although Sosa's distinction is extremely appealing, it also faces serious problems. In particular, the sorts of processes that would be required for reflective knowledge, as Sosa understands it, are not processes (...) that are instantiated in human cognition. -/- I argue that the problems facing Sosa's notion of reflective knowledge stem from treating human cognitive processes individualistically. They stem from what I will term Sosa's perspective of methodologically individualistic noetic explanation—or MINE. -/- I suggest that these problems disappear if we expand the scope of what counts as cognitive processes to include socially distributed cognitive processes, if we adopt a framework of other‐derived united reflective self‐evaluation—or OURS. -/- In other words, I'll suggest that a solution to the problems facing the distinction between animal and reflective knowledge may be found in a shift of perspective from MINE to OURS. (shrink)

The concept of mental disease has broadened considerably in the last few years. Many mental states that were not previously considered problematic now fall under the category of disease. The most notable example is anxiety. Anxiety disorders are the most prevalently treated mental disease. The current social and psychiatric authorities emphasize the negativity of the affective state and recommend methods by which the state can be avoided. The problem with these approaches is that they do not recognize the functional role (...) of anxiety in the life of the individual. Anxiety is a stimulus for growth and individuation, but this growth can only occur when the anxiety-provoking situation is altered for the better. The theories of Søren Kierkegaard, Ernest Schachtel, and Kurt Goldstein will be called upon to support the theory that anxiety is inherent in personal growth. It is ultimately argued that eliminating anxiety creates static individuals in a static society and is harmful to both individual and social progress. (shrink)

This is the first book to offer the best essays, articles, and speeches on ethics and intelligence that demonstrate the complex moral dilemmas in intelligence collection, analysis, and operations. Some are recently declassified and never before published, and all are written by authors whose backgrounds are as varied as their insights, including Robert M. Gates, former Director of the Central Intelligence Agency; John P. Langan, the Joseph Cardinal Bernardin Professor of Catholic Social Thought at the Kennedy Institute of Ethics, (...) Georgetown University; and Loch K. Johnson, Regents Professor of Political Science at the University of Georgia and recipient of the Owens Award for contributions to the understanding of U.S. intelligence activities. Creating the foundation for the study of ethics and intelligence by filling in the gap between warfare and philosophy, this is a valuable collection of literature for building an ethical code that is not dependent on any specific agency, department, or country. (shrink)

This collection of essays is a Festschrift for Ernest W. Adams, and is based on a symposium that was held in his honor in 1993. As the title suggests, most of the essays focus on probability and the logic of conditionals, and the relationship between them; they draw their inspiration from Adams’s seminal work on the subject. As a computer scientist, I was struck by just how much the topics discussed play a major role in much recent work in (...) computer science, and how relevant much recent work in computer science is to some of the issues discussed here. (shrink)

This collection of essays is a Festschrift for Ernest W. Adams, and is based on a symposium that was held in his honor in 1993. As the title suggests, most of the essays focus on probability and the logic of conditionals, and the relationship between them; they draw their inspiration from Adams’s seminal work on the subject. As a computer scientist, I was struck by just how much the topics discussed play a major role in much recent work in (...) computer science, and how relevant much recent work in computer science is to some of the issues discussed here. (shrink)

A review of Ernest Weinrib's _Corrective Justice_.

Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies. This volume presents twelve original essays by leading natural law theorists and their critics. The contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate the arguments and counterarguments (...) exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib. (shrink)

Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale (...) or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently. (shrink)