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

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social order.

An executive ought to be as informed as possible about the needs and preferences of her constituency and about the most important policy issues that her constituency confronts. This ethical duty, referred to as the informed governance principle, requires that an executive who is not opposed to the death penalty personally carry out at least one execution of a death row inmate. Having an executive act as executioner, even if just once, could also help citizens reflect upon their personal ethical (...) commitments, spur them to monitor the government’s power, and prompt them to contemplate how best to distribute power so that the chance of injustice is minimized. (shrink)

In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism. In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity between totalitarianism and (...) the Moral Law is the problem of the undecidable, which arises when the empty ground of normative judgment comes to light. (shrink)

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve (...) scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified. (shrink)

Upholding cooperative norms via punishment is of central importance in organizations. But what effect does punishing have on the reputation of the punisher? Although previous research shows third parties can garner reputational benefits for punishing transgressors who violate social norms, we proposed that such reputational benefits can vary based on the perceived motive for the punishment. In Studies 1 and 2, we found that individuals who endorsed a consequentialist (versus deontological) motive for punishing were seen as more trustworthy. In Study (...) 3, the results showed that when pitted against one another, a person who endorsed a consequentialist (versus deontological) motive for punishing was chosen more often as a partner in a Trust Game. In Study 4, we found that a manager who expressed a consequentialist reason for punishing an employee was seen as having less psychopathic tendencies, and this related to the manager being perceived as more trustworthy and a superior cooperation partner. Using a recall methodology, Study 5 results showed that employees who perceived their managers as having more consequentialist (versus deontological) motives for punishing also perceived their managers as being less psychopathic and more trustworthy. Theoretical and practical implications are discussed. (shrink)

Upholding cooperative norms via punishment is of central importance in organizations. But what effect does punishing have on the reputation of the punisher? Although previous research shows third parties can garner reputational benefits for punishing transgressors who violate social norms, we proposed that such reputational benefits can vary based on the perceived motive for the punishment. In Studies 1 and 2, we found that individuals who endorsed a consequentialist motive for punishing were seen as more trustworthy. In Study 3, the (...) results showed that when pitted against one another, a person who endorsed a consequentialist motive for punishing was chosen more often as a partner in a Trust Game. In Study 4, we found that a manager who expressed a consequentialist reason for punishing an employee was seen as having less psychopathic tendencies, and this related to the manager being perceived as more trustworthy and a superior cooperation partner. Using a recall methodology, Study 5 results showed that employees who perceived their managers as having more consequentialist motives for punishing also perceived their managers as being less psychopathic and more trustworthy. Theoretical and practical implications are discussed. (shrink)

The defense of necessity, also known as the “choice of evils,” reflects popular moral intuitions and common sense: sometimes, breaking the rules is the right—indeed, the only—thing to do in order to avoid a greater evil. Citing a classic example, mountain climbers may break into a cabin to wait out a deadly snow storm and appropriate the owner’s provisions because their property violations are a lesser evil compared to the loss of life. At the same time, this defense contradicts the (...) fundamental principles of criminal responsibility in that it authorizes violation of rights of innocent bystanders. By allowing the mountain climbers to override the property rights of the cabin owner, the defense effectively forbids the cabin owner to use force in response—a different rule would perpetuate violence. This outcome is at odds with the basic criminal law doctrines. There is no general duty to rescue in Anglo-American law. Yet, by forbidding the cabin owner to use force, the defense of necessity essentially imposes on him the duty to forego his interests in favor of those of the mountain climbers. The paper explores the origins and boundaries of the defense of necessity. It argues that the existing public and private theories of necessity are unsatisfactory and concludes that a viable theory of necessity should be able to explain why it is sometimes permissible to override individual rights of citizens without their consent or fault. (shrink)

Hukukun başlıca sorunları olan genellik ve geçerlilik Immanuel Kant’ın evrensel yasa arayışını incelemeyi gerektirmektedir. Kant evrensel ilkeleri ararken hukuka dair belirlemeler yapmaktadır. Bu çalışmada hak ve hukuk kavramları Kant’ın kapsayıcı ve bütünleştirici sisteminde tahlil edilmektedir. Ahlak Metafiziği’nin Temellendirilmesi eserinde temeller görülürken Ahlak Metafiziği eserinde hakka ve yasal düzenlere dair bir doktrin kurulmaktadır. Kant’ın ideal sisteminde yasal mevzuat değil yasaların temellendiği ilkelerin belirlenmesi esastır. Bu belirleme aynen ahlak yasasında olduğu gibi sonuçlarla ilgilenmez. Bir eylemin sonucunun iyi olup olmaması sorun teşkil etmez. (...) Eylemin dayandığı ilkenin iyi olması, dolayısıyla hukuki açıdan da eylemin dayandığı yasanın iyi olması gerekir. Böyle bir yasanın olanağı da Kantçı metinlerin çözümlenmesi ile izah edilebilir. (shrink)

In the United States, convicted offenders frequently lose the right to vote, at least temporarily. Drawing on the common observation that citizens of color lose democratic rights at disproportionately high rates, this chapter argues that this punishment is problematic in non-ideal societies because of the way in which it diminishes the political power of marginalized groups and threatens to reproduce patterns of domination and subordination, when they occur. This chapter then uses the case of penal disenfranchisement to illustrate how idealized (...) discussions of deterrence, rehabilitation, and retribution often ignore the relationship between punishment and social/political power, and thus systematically obscure morally significant aspects of our broader penal practices. (shrink)

Normal 0 21 false false false ES-CO X-NONE X-NONE MicrosoftInternetExplorer4 In this paper we study the Kantian conception of punishment in the Metaphysics of Morals. We look at Foucault’s reformulation of the right to punish which is mostly a critique of the kantian conception. Then we introduce the conception of restorative justice grounded on the social ideal of recognition, which corrects certain aspects of the Kantian conception, but gives to justice its status of an institution rather than being a critique (...) of it. (shrink)