This section aims to summarize and conclude Part I in the form of a taxonomy of legitimate and illegitimate corporate moral responsibility attributions. I believe we can categorise four types of corporate moral responsibility attributions two of which are legitimate and two which are illegitimate with regard to our concept of moral agency and our moral intuition of fairness.

This chapter presents some of Ayn Rand's express condemnations of non‐objective law and then indicates the underlying principles of government that explain these assessments. It also discusses the implications of Rand's view for the traditional Natural Law‐Positivism dispute over the authority of law and for the moral status of the Rule of Law. In particular, the chapter shows why the Rule of Law, on what she regards as a proper conception of objective law, is emphatically a moral ideal. The broad (...) scope of Rand's conception of objective law is explained not only by her view of the function of government, but also by her understanding of objectivity itself. In the sense in which the term applies to man‐made things, objectivity is normative. Rand's analysis suggests that the propriety of the Rule of Law rests, at bottom, in its objectivity. The Rule of Law banishes subjectivism. (shrink)

Technological and societal changes have made downward social and economic mobility a pressing issue in real-world politics. This article argues that a Rawlsian society would not provide any special protection against downward mobility, and would act rightly in declining to provide such protection. Special treatment for the downwardly mobile can be grounded neither in Rawls’s core principles—the basic liberties, fair equality of opportunity, and the difference principle—nor in other aspects of Rawls’s theory. Instead, a Rawlsian society is willing to sacrifice (...) particular individuals’ ambitions and plans for the achievement of justice, and offers those who lose out from justified change no special solicitude over and above the general solicitude extended to all. Rather than guaranteeing the maintenance of any particular individual or group’s economic position, it provides all of its members—the upwardly mobile, the downwardly mobile, and the immobile—a form of security that is at once more generous and more limited: that they will receive the liberties, opportunities, and resources promised by the principles of justice. (shrink)

There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements (...) like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

This paper addresses the question of what value pluralism tells us about the pursuit of moral coherence as a method of moral reasoning. I focus on the status of the norm of ‘systematicity,’ or the demand that our principles be as few and as simple as possible. I argue that, given certain descriptive facts about the pluralistic ways we value, epistemic ways of supporting a systematicity norm do not succeed. Because it is sometimes suggested that coherence functions in moral reasoning (...) as it does in scientific reasoning, my argument considers analogies and disanalogies between moral reasoning and scientific reasoning. (shrink)

While the rule of law is surely a very important good, the familiar discussions found in the literature lead many to conclude that it is either a relatively trivial political ideal, or else a redundant one. What is needed is a new and persuasive defense of the rule of law that properly reflects its great significance for human well being. An important step towards building such an argument is to question a widely-shared but often unnoticed assumption that the rule of (...) law should be understood as a virtue of legal systems. The path is then cleared for a republican argument built on two theses: first, the thought that an ideal society would be one in which no one is the master of anyone else, and second, the thought that our freedom from domination is not natural or pre-institutional. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the Rule of Law. By (...) taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...) doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (shrink)