In this essay I will attempt to explain the relation between the rule of law and the economic development. First I will describe the rule of law and its role through the years. Then, I will continue with the connection between economic development and the rule of law. I will try to clarify Macedonia’s legal framework and emphasize the constitution and its role regarding the rule of law and economic development. Latter, I will focus on the EU’s report on our (...) economy in our journey towards the union. And finally I will give something to think about for future researchers. (shrink)

Corruption is a major problem in many of the world’s developing economies today. World Bank studies put bribery at over $1 trillion per year accounting for up to 12 of the GDP of nations like Nigeria, Kenya and Venezuela. Though largely ignored for many years, interest in world wide corruption has been rekindled by recent corporate scandals in the US and Europe. Corruption in the developing nations is said to result from a number of factors. Mass poverty has been cited (...) as a facilitating condition for corruption just as an inability to manage a sudden upsurge in mineral revenues has been credited with breeding corruption and adventurous government procurement among public officials in countries like Nigeria and Venezuela. Virtually all developing nations that have serious corruption problems also have very limited economic freedom and a very weak enforcement of the rule of law. In such nations, corruption represents a regressive taxation that bears hard on the poor. It has a dampening effect on development and it could result in the production of inferior goods as companies find ways to accommodate under-the-table payments. Finally, corruption is a dangerous threat to the legitimacy of the governments of some of the developing nations themselves. It is suggested that new urgent initiatives are needed to deal with the dangers posed by corruption in the developing economies. They include making the economies of these nations more open by the withdrawal of the government from the productive sector and by the abolition of unnecessarily stringent restrictions on business conduct. The rule of law needs to be strengthened in these nations and those countries like Nigeria and Venezuela should ignore scruples over sovereignty and seek foreign assistance in the management of their oil wealth. Finally, multinationals should be made to disclose all the payments they make in developing nations to such organizations like International Chamber of Commerce or Transparency International where they can be reviewed by anyone interested. (shrink)

This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.

This book serves as a compact introduction to the economic analysis of law and organization. At the same time it covers a broad spectrum of issues. It is aimed at undergraduate economics students who are interested in law and organization, law students who want to know the economic basis for the law, and students in business and public policy schools who want to understand the economic approach to law and organization. The book covers such diverse topics as bankruptcy rules, (...) corporate law, sports rules, the organization of Congress, federalism, intellectual property, crime, accident law, and insurance. Unlike other texts on the economic analysis of law, this text is not organized by legal categories but by economic theory. The purpose of the book is to develop economic intuition and theory to a sufficient degree so that one can apply the ideas to a variety of areas in law and organization. (shrink)

This chapter contains sections titled: Feudalism Magna Carta28 The Basic Idea: No One Is Above the Law The Modern West Takes Shape From Law to Commerce Equality Before the Law Conclusion Discussion Acknowledgments.

In this provocative and engaging new book, Randy Barnett outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

At the core of republican thought, on Philip Pettit’s account, lies the conception of freedom as non-domination, as opposed to freedom as noninterference in the liberal sense. I revisit the distinction between liberal and republican freedom and argue that republican freedom incorporates a particular rule-of-law requirement, whereas liberal freedom does not. Liberals may also endorse such a requirement, but not as part of their conception of freedom itself. I offer a formal analysis of this rule-of-law requirement and compare liberal and (...) republican freedom on its basis. While I agree with Pettit that republican freedom has broader implications than liberal freedom, I conclude that we face a trade-off between two dimensions of freedom (scope and robustness) and that it is harder for republicans to solve that trade-off than it is for liberals. Key Words: freedom • republicanism • liberalism • noninterference • non-domination • rule of law • robustness • liberal paradox. (shrink)

This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices (...) that constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to elaborate (...) the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

The potential use, relevance, and application of AI and other technologies in the democratic process may be obvious to some. However, technological innovation and, even, its consideration may face an intuitive push-back in the form of algorithm aversion (Dietvorst et al. J Exp Psychol 144(1):114–126, 2015). In this paper, I confront this intuition and suggest that a more ‘extreme’ form of technological change in the democratic process does not necessarily result in a worse outcome in terms of the fundamental concepts (...) of democracy and the Rule of Law. To provoke further consideration and illustrate that initial intuitions regarding democratic innovation may not always be accurate, I pose and explore four ways that AI and other forms of technology could be used to augment the representative democratic process. The augmentations range from voting online to the wholesale replacement of the legislature’s human representatives with algorithms. After first noting the intuition that less invasive forms of augmented democracy may be less objectionable than more extreme forms, I go on to critically assess whether the augmentation of existing systems satisfies or enhances ideas associated with democracy and the Rule of Law (provided by Dahl and Fuller). By imagining a (not too far-fetched) future in a (not too far-removed) democratic society, my conclusion is that, when it comes to democracy and the Rule of Law, intuitions regarding technology may lead us astray. (shrink)

L’article présente une étude critique des fondements méthodologiques de l’analyse économique du droit traditionnelle dans laquelle le droit est conçu comme le résultat optimal d’une comparaison de coûts et d’avantages sociaux. Cette procédure judiciaire qui vise en fait à simuler des solutions de marché “socialement efficientes” présuppose inévitablement l’omniscience du juge. Cependant dans le contexte de l’équilibre général, l’analyse économique du droit traditionnelle n’a pas de raison d’être, alors qu’elle s’avère impraticable dans le monde réel où elle serait pourtant nécessaire (...) afin de résoudre des problèmes de coordination entre les individus. A cet égard la théorie économique de l’Ecole Autrichienne qui insiste sur les problèmes informationnels de la société et qui décrit le droit comme une procédure de coordination fondée sur des règles abstraites de juste conduite, semble fournir des fondements plus appropriés pour une approche économique du droit. L’article utilise la méthodologie Autrichienne pour reconsidérer l’analyse économique du droit tout en insistant à la fois sur la dimension institutionnelle et la dimension éthique du droit. Le problème central est l’interdépendance entre le droit et l’ordre de marché, mais il est analysé dans des termes fondamentalement différents de ceux de l’analyse traditionnelle.The paper presents a critical analysis of the methodological foundations of conventional law and economics, where law is generally described as the optimal outcome ot a judicial balancing of social costs and benefits. This law making procedure which aims at simulating “socially efficient” market outcomes inevitably presupposes Judges’ omniscience. Nevertheless, in this context of full coordination, this type of law has no raison d’être, whereas it turns out to be infeasible in the real world where it would be necessary in order to solve information and coordination problems. In this respect, Austrian economic and legal theory which focuses on the knowledge problem of society and which describes law as a coordination procedure built on abstract rules of just conduct, seems to provide more appropriate foundations for an economic analysis of law. This paper uses the Austrian approach to reconsider economic analysis of law in a way that allows for both the institutional and the ethical dimensions of law. The central problem seems to lie in the interdependance of law and the ethical dimensions of law. The central problem seems to lie in the interdependancc of law and the market order but it is conceived in a very different way than it is in conventional analysis. (shrink)

The aim of this paper is to contribute to the development of a theory of economic freedom. In this endeavor, we build our framework on the Hayekian notion of freedom because it explicitly embodies the obvious link between freedom and the state: freedom is an absence of state coercion except for that which enforces abstract, general rules known beforehand. We derive two propositions from this Hayekian thesis and elaborate on them, leading to a categorization of government actions from the (...) viewpoint of economic freedom in which the criterion against which coercive governmental actions must be evaluated is the rule of law, meaning a government’s reliance on general, abstract rules. As an implication, our framework allows us to argue for the imperative differentiation between “efficiency” and “economic freedom” as two separate criteria against which government actions can and must be evaluated. We also show that our framework may help explain the process through which economic freedom enhances growth. (shrink)

This chapter contains section titled: Introduction A Characterization of Economic Analysis of Law Normativity Preference and Obligation Concluding Remarks Note References.

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In (...) particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

Governments, or at least the clever ones among them, are aware of the factors guiding business activities. In the course of adopting and enforcing economic legislation, they seek to attract business activities in order to increase national income, generate employment opportunities, and, very generally, please voters. Hence economic law may be considered an economic good, as suggested by the title of this book. That function, which most rules of economic law have in the competition of systems, was strengthened by (...) the worldwide liberalization of trade. Today, it is of greater significance than ever before. Lawyers, economists, academics, and practitioners, from inside and outside Germany, have taken a look at the facts and have discussed approaches to conceptualizing them. The resulting 30 essays, collected in this volume, contribute to the interpretation of existing, and the making of new, economic law. (shrink)

Julia Black's book is the first authoritative study of rulemaking in one of the most important areas of economic life: financial services. The books has three main aims: first, to build a jurisprudential and linguistic analysis of rules and interpretation, drawing out the implication of theseanalyses and developing quality proposals for how rules could be used as instruments of regulation. Second, it interprets that analysis and set of proposals with an empirical study of the formation and use of (...) rules in a particular regulatory system: financial services, and third, it evaluates thenature of the rulemaking process. The author's main case study, examining the use of self-regulation in the financial services sector, complements the detailed analysis of rule formation and uses. The book will be an invaluable addition to the libararies of all administrative lawyers and anyone withan interest in the provision and regulation of financial services. (shrink)

Vietnam is implementing global socio-economic integration, so the law must also be renovated to meet the requirements of international integration. Because the law is attached to the country's institutions, it shows the consistency in Vietnam's politics, economy, and diplomacy. In the world, the rule of law is a typical value that humanity aims for because it upholds the law, expressing our nation's aspiration for a democratic and equal society. Therefore, Vietnam has built a socialist rule of law. To achieve this, (...) Vietnam must ensure the free power of its citizens, promote the democracy of the state, and ensure that power belongs to the people. The paper uses a materialist dialectical method to examine the building of civic consciousness that promotes the perfection of Vietnam's current socialist rule of law. At the same time, the article also uses analytical methods and synthetic methods to clarify the sense of citizenship in the Vietnamese state, Vietnam's political institutions, and the development of the socialist rule of law is correct. (shrink)

Social life is changing very fast. People are trying to find out reasons of living in a safe society and understand their role in it. The ‘wrong’ and ‘right‘ models of the social life, state and law systems are appearing. In the XXth century, one of them – socialism – made suggestion how to solve social problems, determinated of capitalism. This work deals with the situation of Lithuanian social thought in the Republic of Lithuania (1900-1940). In the article, the standpoint (...) of catholics of socialism is reflected. Catholics displayed socialism as a system, which accumulated many distorted images about human nature, motivations of human behavior, society and its functionating. Considering the society being an organic totality of individuals, but not a faceless mass, and an individual being a personality having natural rights to be respected, but not considered as a little screw without any rights in the state machine, with whom any experiments may be performed, they disclosed Utopia of the idea, proposed by socialists, of the possibility of a perfect society creation by the only preliminarily arranged correct plan,. For this purpose to be achieved, they constructed a model of socialist economy and then destroyed it, demonstrating economical unefficiency of this system. In this manner, intellectuals warned Lithuania and its people about the destructiveness of the realization of such an experiment. In spite of criticism of socialism, some intellectuals, such as A. Maceina, S. Šultė and S. Šalkauskis, appeared to be rather respective to the new social ideas and did not distinguish any social economic system as the best and only one. They thought that all the world, including Lithuania, has to create a new social life and take as a base the progressive ideas of socialism and capitalism. According to the opinion of the catholics, the most reliable way to a safe sočiety and economical welfare passes through the cooperation of individuals and state’s duty to create right laws. Ideological spirit was the main obstacle for the intellectuals to recognize trends of socialism by their aims and methods. That is the reason, why socialism was identified as bolsevism. However, the expression of the intellectuals’ opinion about socialism, its ideological herritage and perspectives enriches the research of the Lithuanian legal phylosophical and political thought and allows to understand better the ideological development of socialism and to define its competence and limits of validity in the contemporary world. Valuable ideas may be fruitfully used in creating a democratic society, social state and the rule of law. (shrink)

Many scholars assume a connection between the evolution of language and that of distinctively human group-level morality. Unfortunately, such thinkers frequently downplay a central implication of modern Darwinian theory, which precludes the possibility of innate psychological mechanisms evolving to benefit the group at the expense of the individual. Group level moral regulation is indeed central to public life in all known human communities. The production of speech acts would be impossible without this. The challenge, therefore, is to explain on a (...) Darwinian basis how life could have become subject to the rule of law. Only then will we have an appropriate social framework in which to contextualize our models of how language may have evolved. (shrink)

When we understand the ontological, political and legal underpinnings associated with the concept of freedom, liberty and rights, we understand the relationship between rights and laws. Rights can be understood as liberties or as laws. Liberties can be understood as de facto rights or as de jure rights. It is de jure rights that are recognized as laws that provide the basis for the rule of law. It is the rule of law that provides the basis for (...) equal rights and equal justice in an ideal republic. Rights, laws and the rule of law are distinct. Rights are self-evident truths. Laws are imperatives backed by sanctions (John Austin). The rule of law is a principle that purports that the recognition de facto and de jure rights provide the basis for political, social and economic justice. People live by the rights recognized by law. As such, the rule of law advocates two fundamental underpinnings in a republic: (1) the recognition of rights as the basis for equal rights and equal justice, and (2) the recognition of law as the basis for governance. (H.L.A. Hart). However, since the recognition of law is the recognition of rights, the recognition of rights precedes the governance by law principle. What is fundamental to the rule of law is that it recognizes rights, legitimizes political rule and administers equal/blind justice (Meyers, 1213). As such, no branch of government can weaponize laws to terminate recognized individual rights. The maxim of the republic should be – while anyone can be the ruler, everyone lives as free as the ruler. Majority rule and protection of self-evident individual rights is fundamental to an ideal republic. Keywords: law, equal rights, equal justice, impunity, rule of law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy of Music Education Review 11.2 (2003) 185-193 [Access article in PDF] Response to Marja Heimonen, "Music Education and Law:Regulation as an Instrument" Raimo Siltala University Of Helsinki, Finland From a legal point of view, Marja Heimonen's dissertation and the extract published in this issue of PMER, "Music Education and Law: Regulation as an Instrument," presents a most important question: Should music education be regulated by law, and if (...) so, by what kind of legal instruments—by strict legal rules, by softer legal standards, by self-regulation, or by leaving the matter to the laissez-faire and "invisible hand" of the market, where economic efficiency takes over from legal regulation? Heimonen's dissertation is to my knowledge the very first of its own kind, combining elements from music education and the law and, indeed, legal philosophy in an imaginative and highly original manner. Her scholarly position between music education and law is a courageous one because she might invite critical comments equally from the two branches of science involved: the music educational and the legal philosophical one. Yet, she has a gained a profound understanding of the specific needs of music education and of the restrictions of law and legal regulation, and the two-sided approach is really one of the true strengths, and not weaknesses, of the scholarly work. Her approach strives mainly at a broad hermeneutical comprehension of the issue in the humanistic [End Page 185] tradition, but there are other elements involved, as well, related to the analytical or instrumental tradition.There is a large legal comparative part in the treatise, covering approximately one third of the whole thesis, with material drawn from Sweden, England, Germany, and Finland and the system of music education in each. The three legal systems have been chosen with good discretion: one with a common law background (England), one belonging to the Roman-Germanic tradition (Germany), and one from the Scandinavian legal tradition (Sweden), and the Finnish system of music education is then compared to all of them. The Swedish model is based on equal opportunity given to all the applicants with no entrance examinations held and as many willing children accepted to the music schools as is possible. The British system, or rather a "non-system," of music education is privately owned and market-based, with only a few regulations issued by the government and with an emphasis on the visiting peripatetic teachers, voluntary Saturday music schools, and the special schools founded for the musically talented. The German system, like the one in Finland, is based on formal entrance examinations and degrees passed, where both a professional career in music performance and artistic self-expression may be pursued as the primary goal of music education."The Swedes have Abba and Roxette, we the Finns have Kaija Saariaho and Ralf Gothoni"—along with Esa-Pekka Salonen and other world-class conductors, one might add—as Heimonen notes in the text, but why is that so? Does the difference in the outcome, in the sense of a breakthrough either in popular music groups or individual performers in classical music, lie in the system of music education and the legislative ideology at the back of it? Heimonen refuses to give a simple and straightforward answer to that question, declining to place the various systems of music legislation in an order of preference. Instead, she adopts a broadly humanistic and hermeneutical perspective to the issue, where the merits and the disadvantages of each legal system are taken on an individual basis. The Shakespearean question that is so boldly put forth by her, "viz. to regulate or not to regulate," is answered only with reference to a widely humanistic understanding of the complex issue of music education where the intrinsic values of artistic self-expression and the instrumental values of training future professionals in music performance, composing, and conducting, are contrasted with other, but where no winners or losers are identified by her.There would seem to be a connection between a certain legal system and its model of... (shrink)

Law, Economics, and Morality examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. (...) It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. Eyal Zamir and Barak Medina argue that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. They discuss various substantive and methodological choices involved in modeling deontological constraints. Zamir and Medina propose to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. Law, Economics, and Morality presents the general structure of threshold functions, analyzes their elements and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, antidiscrimination law, the fight against terrorism, and legal paternalism. (shrink)

The focus of the present study was the rationality of moral behaviour and moral conviction. Assumptions like "morality pays" or "good ethics is good business" are not a priori right. Whether morality as personal conviction is also economically rational or not depends in large part on the institutional setting of a society and the likelihood that immoral behaviour will be sanctioned. The systematic approach to morality thus appears to be political economy and the institutional setting: rules and laws. (...) However, the conditions for morality depend not only on the formal structures but also on the informal structures of rules and sanctions. Hence, the systematic approach to morality is most closely linked with the culture of a society; the efficiency of individual morality depends on social conditions. It is costly for individuals and societies to establish and entertain conditions that set clear incentives for moral behaviour. In this context, moral competencies, learning, and education play a crucial role. (shrink)

The unprecedented rise and fall in silver's price during 1979 and 1980 resulted in charges against the Hunt brothers of Dallas of monopolization and market manipulation, charges which led to a lengthy trial. This book focuses on the economic analysis used at this trial. Drawing upon interviews with the judge, jury, attorneys and expert witnesses, it investigates the elusive definition of manipulation in sophisticated markets, the difficulties of interpreting statistical evidence, the imprecision in calculating damages, the hidden assumptions behind inferences (...) concerning intent, and the hazards introduced when economic analysis enters complex litigation. The author concludes that these problems induce courtroom procedures to oversimplify the economic analysis and cause the law on market manipulation to be created retroactively. Yet the failure lies not with the legal institutions but with the futures exchanges who had not developed in advance the rules to minimize large-scale trading during the unusual price moves. (shrink)

Over the past 30 years, the world has experienced a profound transformation, becoming both more open and more prosperous. Whereas in 1985 more than half of the countries worldwide were under authoritarian rule, most countries today are considered electoral democracies. Since 1990, more than a billion people have been lifted out of extreme poverty, while well-being indicators have improved dramatically on a global level, especially in terms of health and education.

Classified advertising occupies a prominent place in the history and current economics of the print media in America, including magazines. There are dozens of classifications, most of which are as innocuous as the language that constitutes the individual advertisements. The personals classification, however, is not always so innocuous. Gun-for-hire classified advertisements in one magazine were so blatant that several serious crimes, including murder, were committed as a result of the advertisements. Generally, courts find no liability for disseminators of advertising that (...) causes harm. But the application of the ethical theory of basic mixed rule deontology would mandate that publications should not publish such classified advertising notwithstanding that it is likely legal to do so. (shrink)

The present essay addresses the conceptual structure of customary law, understood as a set of customary rules. More specifically, it deals with the core question of what opinio juris entails as a constituent element of customary law. The work will begin with an analysis of samples of common strategies in contemporary legal theory that deal with opinio juris when analyzing the structure of customary law. Subsequently, following Hart’s notion about what constitutes social rules, and introducing explanatory features from (...) Game Theory applied to social philosophy and some insights from Behavioral Economics, the goal of the present study is to propose a different conceptual path for analyzing and identifying customary law with what could be understood as “opinio juris”, given the conceptual necessity of finding the normative element that lies within the usus, or social practices. (shrink)

This book argues for evolutionary epistemology and distinguishing functionality from physicality in the social sciences. It explores the implications for this approach to understanding in biology, economics, psychology and political science. Presenting a comprehensive overview of philosophical topics in the social sciences, the book emphasizes how all human cognition and behavior is characterized by functionality and complexity, and thus cannot be explained by the point predictions and exact laws found in the physical sciences. Realms of functional complexity – such (...) as the market order in economics, the social rules of conduct, and the human CNS – require a focus on explanations of the principles involved rather than predicting exact outcomes. This requires study of the historical context to understand behavior and cognition. This approach notes that functional complexity is central to classical liberal ideas such as division of labour and knowledge, and how this is a far more powerful and adequate account of social organization than central planning. Through comparison of these approaches, as well as its interdisciplinary scope, this book will interest both academics and students in philosophy, biology, economics, psychology and all other social sciences. (shrink)

A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance on contracts. (...) We test four prominent theories: functional equivalence, legal origins, political economics and cultural economics. We find that a culture of self-reliance is the key determinant of comparative variation in this area of law. (shrink)

Globalization processes imply the self-deconstruction of the hierarchy of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by `private regimes' has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal operations is an `as if', not (...) only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction, however, depends on social conditions outside legal institutions, on a historical configuration in which it is sufficiently plausible to assume that in earlier times, too, legal rules were applied. (shrink)

This collection uses economic analysis to study some of the most pressing issues in corporate law. The last decade has brought certain corporate transactions and arrangements to the forefront of public attention and public debate. At the same time, a new mode of corporate law analysis has been developed - one that uses the tools of economics to identify the consequences and desirable features of corporate law rules. By bringing together work at the frontier of this method of analysis, (...) the volume provides a good picture of the power, current state, and future direction of the economic analysis of corporate law. Written by some of the most prominent contributors to the field, many of the chapters focus directly on the corporate control transactions that have recently attracted the most interest and controversy - corporate takeovers, buy-outs, recapitalizations, and reorganizations. (shrink)

As a result of the increasing economical exploitation of outer space, humanity faces a new challenge that, as well as having economic advantages, also entails a great many ecological hazards. At present, the human race is encroaching on outer space, particularly in the form of almost 5000 active satellites and the corresponding space debris they produce. For the large part, this debris burns up on entering the Earth’s atmosphere, yet time and again it still does cause damage. However, this (...) could change dramatically if, as is now foreseeable, further uses of outer space, such as tourism, so-called satellite mega-constellations, regular transport flights to the moon or even Mars and the extraction of water and valuable rocks from celestial bodies, are expanded. There is a danger that ecological damage like that of the earlier phases of economic development will become externalised and ultimately pose a threat to the whole of humanity. Sautter’s ‘global “sustainability trilemma”’ remains unresolved. This trilemma consists in the fact that, in political resolutions, ‘the growth of resource-intensive prosperity is weighted far more highly than the conservation of functioning ecosystems and the implementation of inter- and intragenerational “justice”’ and that there are ‘up until now no efficient and ethically acceptable solutions’ for this problem. In this situation, it is therefore more important that rules for the sustainable use of outer space be established and enshrined as legally binding so that it becomes possible to minimise or even to preclude negative ecological consequences.Contribution: Although the commercial use of outer space does not seem to be a crucial point, it marks a new step of the dynamics of modern economics that has to be identified as an important ethical challenge. The article discusses aspects of ethics, law, religion and economy in a multidisciplinary way. (shrink)

This paper presents rational and unanimously agreeable norms in (a) governance, (b) economic policy, (c) constitution and (d) religious and scientific beliefs for civilized coexistence. The basis of unanimous agreeability is that individuals do not prefer to have their wealth (including life) robbed, even surreptitiously. This preference is unanimous because even robbers do not want to be robbed. I argue that unanimously agreeable norms are necessary for civilized co-existence of humans and are consistent with the ancient philosophy (Hindutva), which originated (...) in India more than 3000 years BC and is reflected in Gita, https://en.wikipedia.org/wiki/bhagavad_gita. Gita is considered by Courts of India as a philosophical document. The basic ethos of Gita is explicit and transparent: the state (King Dhristarastra) must not allow anyone (including privileged princes like Duryodhan) to take away others' (Pandavas') property even surreptitiously (through Sakuni's rigged game of Pashakhel). The modern constitution ordains freedom through rights to property, liberty and pursuit for happiness of individuals. But it has tacitly allowed establishment of a system (rules) of governance to facilitate surreptitious robbery. Individuals accumulate property like home and retirement savings with a hope to attain freedom, eventually, which they cannot achieve if they are robbed, even surreptitiously. The ancient philosophy of Gita prohibits robbery of any kind and, thus, guarantees hope for individual freedom. The modern philosophy—underlying the established system (rules) tacitly allowing surreptitious robbery—cannot, however, achieve individual freedom. Widespread or inclusive economic prosperity can be attained only if the constitution and rules of law are unanimously agreeable which will be consistent with ancient ethos but not modern philosophy. (shrink)

This paper contrasts the value maximization norm of welfare economics that is central to law and economics in its prescriptive mode to the Aristotelian/Aquinian principles of Catholic social thought. The reluctance (or inability) of welfare economics and law and economics to make judgments about about utilities (or preferences) differs profoundly from the Catholic tradition (rooted in Aristotle as well as religious faith) of contemplation of the nature of the good. This paper also critiques the interesting argument by Stephen Bainbridge that (...) homo economicus bears a certain affinity to fallen man, and that law and economics thus provides appropriate rules for a fallen world. From a Catholic perspective, the social vision of neo-classical economics and its progeny (welfare economics and law and economics) rests on a concept of human autonomy and a utilitarian concept of pleasure inconsistent with the Aristotelian and Aquinean concept of virtue and the conception of civic happiness articulated by Antonio Genovesi and other Catholic economists. (shrink)

This is the first book to examine individual rights from an economic perspective, collecting together leading articles in this emerging area of interest and showing the vibrant and expanding scholarship that relates them. Areas covered include The implications of constitutional protections of individual rights and freedoms, including freedom of speech and of the press, The right to bear arms, The right against unreasonable searches, The right against self-incrimination, The right to trial by jury, The right against cruel and unusual punishment, (...) including capital punishment. The focus of these papers is both theoretical and empirical, examining how economics can illuminate the entire sequence of crime and punishment, from the decision to commit a crime, to police methods for apprehending and arresting criminals, to the rules used in trials to the scope of punishment for the convicted. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy of Music Education Review 11.2 (2003) 185-193 [Access article in PDF] Response to Marja Heimonen, "Music Education and Law:Regulation as an Instrument" Raimo Siltala University Of Helsinki, Finland From a legal point of view, Marja Heimonen's dissertation and the extract published in this issue of PMER, "Music Education and Law: Regulation as an Instrument," presents a most important question: Should music education be regulated by law, and if (...) so, by what kind of legal instruments—by strict legal rules, by softer legal standards, by self-regulation, or by leaving the matter to the laissez-faire and "invisible hand" of the market, where economic efficiency takes over from legal regulation? Heimonen's dissertation is to my knowledge the very first of its own kind, combining elements from music education and the law and, indeed, legal philosophy in an imaginative and highly original manner. Her scholarly position between music education and law is a courageous one because she might invite critical comments equally from the two branches of science involved: the music educational and the legal philosophical one. Yet, she has a gained a profound understanding of the specific needs of music education and of the restrictions of law and legal regulation, and the two-sided approach is really one of the true strengths, and not weaknesses, of the scholarly work. Her approach strives mainly at a broad hermeneutical comprehension of the issue in the humanistic [End Page 185] tradition, but there are other elements involved, as well, related to the analytical or instrumental tradition.There is a large legal comparative part in the treatise, covering approximately one third of the whole thesis, with material drawn from Sweden, England, Germany, and Finland and the system of music education in each. The three legal systems have been chosen with good discretion: one with a common law background (England), one belonging to the Roman-Germanic tradition (Germany), and one from the Scandinavian legal tradition (Sweden), and the Finnish system of music education is then compared to all of them. The Swedish model is based on equal opportunity given to all the applicants with no entrance examinations held and as many willing children accepted to the music schools as is possible. The British system, or rather a "non-system," of music education is privately owned and market-based, with only a few regulations issued by the government and with an emphasis on the visiting peripatetic teachers, voluntary Saturday music schools, and the special schools founded for the musically talented. The German system, like the one in Finland, is based on formal entrance examinations and degrees passed, where both a professional career in music performance and artistic self-expression may be pursued as the primary goal of music education."The Swedes have Abba and Roxette, we the Finns have Kaija Saariaho and Ralf Gothoni"—along with Esa-Pekka Salonen and other world-class conductors, one might add—as Heimonen notes in the text, but why is that so? Does the difference in the outcome, in the sense of a breakthrough either in popular music groups or individual performers in classical music, lie in the system of music education and the legislative ideology at the back of it? Heimonen refuses to give a simple and straightforward answer to that question, declining to place the various systems of music legislation in an order of preference. Instead, she adopts a broadly humanistic and hermeneutical perspective to the issue, where the merits and the disadvantages of each legal system are taken on an individual basis. The Shakespearean question that is so boldly put forth by her, "viz. to regulate or not to regulate," is answered only with reference to a widely humanistic understanding of the complex issue of music education where the intrinsic values of artistic self-expression and the instrumental values of training future professionals in music performance, composing, and conducting, are contrasted with other, but where no winners or losers are identified by her.There would seem to be a connection between a certain legal system and its model of... (shrink)

In this paper, I argue that a principle of rectification for past wrongdoings could and should be added to Rawls's Law of Peoples on the ground that unrectified past injustice undermines the notion of equality of peoples. I base this work on a conception of rectification that includes apologies as well as economic compensation, and I focus on the step of compensation. To do so, I briefly discuss how the maximin decision rule can adapt to the second original position. To (...) address the compatibility of rectificatory justice with Rawls's work, I focus on the strains of commitment and consider Rawls's account of peoples' fundamental interests. Rawls's conception of international justice needs to be responsive to peoples' fundamental interest in equality, which calls for proper protection of their means of self‐respect. Although the moral imbalance stemming from past injustice is overlooked in The Law of Peoples, I show that Rawls's theoretical framework can ground a principle of rectification. (shrink)

This article considers the principles that ought to be used to determine the scope and content of contract law's «default rules», the rules that will, in the absence of express exclusion, govern parties» contractual relationships. It examines three, ostensibly competing, approaches discussed in the literature: that defaults be grounded in the subjective consent of contracting parties, in the customs and norms immanent within the parties» community, and in the value of economic efficiency. It argues that each has something (...) of value to tell us about default rules, but that none can, in isolation, offer a wholly compelling prescription for their design. Rather, the best such prescription must be an eclectic one, drawing something from all three accounts, but varying to reflect the institution promulgating the default. Where defaults are promulgated legislatively, the case for choosing rules that will promote efficiency is a strong one, and the main criticism of efficiency analysis is shown, in this particular context, to be misguided. Where, however, defaults are promulgated adjudicatively—in the context of settling individual cases—the normative appeal of efficiency is much reduced. The article, then, criticizes efficient adjudicative defaults against their defenders, whilst defending efficient legislative defaults against their critics. (shrink)

Economic sanctions are envisaged as a sort of punishment, based on what should be an institutional decision not unlike a court ruling. Hence, the conditions for their lifting should be clearly stated and once those are met sanctions should be lifted. But this is generally not what happens, and perhaps is precluded by the very nature of international sanctioning. Sanctions clearly have political, economic, military and strategic consequences, but the question raised here is whether sanctions can also have moral justification. (...) Illustrated by the example of international sanctions against Yugoslavia, the authors show how the process of escalating demands on a target country, inherent to the very process of sanctioning, can lead ultimately even to overt aggression. As a result of this logic of escalation, economic sanctions cannot be articulated properly in any law-like system. Economic sanctions have much more in common with war than legal punishment, and in fact represent a form of siege. As such, they cannot be ended simply on the basis of their initial rationale, for the very process of sanctions implementation opens up possibilities for setting new goals and a continuous redefinition of the goal that sanctions are seen to have. (shrink)

This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be added piecemeal while (...) the rule remains. The first portion of the dissertation rebuts a prominent criticism leveled at a large class of theories of legal reasoning that includes my theory. The charge is that no coherent theory can recognize both the difference between distinguishing and overruling, and the constraint of precedent. The critics argue that is more important than and that can only be explained by monotonic legal rules. Drawing on cognitive psychology as well as legal theory, I show that coherent theories, such as my own, can accommodate both and. The second chapter provides motivation for understanding precedential constraint in terms of non-monotonic default rules and introduces my positive theory, which elaborates on John Horty's work in treating legal rules as prioritized defaults involving reasons. I motivate and implement a relaxation of Horty's restrictions on the form of rules to allow a more fine-grained characterization of precedent. Finally, I explore the relationship between these relaxations and the concept of precedent. The final section explains how my theory fits into the traditional jurisprudential ecosystem. I demonstrate that, contrary to assertions in the legal theory literature, this non-monotonic approach is entirely compatible with positivism's commitment to extracting rules from authoritative legal sources, namely court opinions. I also suggest how it might be attractive to law and economics theorists, pragmatists, and followers of Dworkin. (shrink)

The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition (...) about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory. (shrink)

The debate about the Strategic Foul has been rumbling on for several decades and it has predominantly been fought on moral grounds. The defenders claim that the rules of a game must be supplemented by the ‘ethos’ of the game, by its conventions or informal rules. Critics of the Strategic Foul argue that to break the rules deliberately, in order to gain an advantage, is morally wrong, spoils the game, or is a form of cheating. Rather than (...) entering the moral maze I will argue that the Strategic Foul rests on a conceptual mistake. I will contrast the Strategic Foul with the idea of Efficient Breach in the economic approach to law in order to bring out some of the salient features. While doing so I will attempt some cross-fertilisation between jurisprudential insights and philosophical reflection on game rules. Finally, I will re-cast Searle’s distinction between constitutive and regulative rules in order to bring out the conceptual mistake more clearly. (shrink)

The aim of The Legal Foundations of Micro-Institutional Performance is to introduce the reader to a different way of thinking about economics that will allow them to both understand and apply legal concepts to economic analysis. To this end, it adopts and further develops Wesley Hohfeld's legal framework of jural (legal) relations as a tool of analysis. This analytical tool, as built into the Legal-Economic Performance framework, provides specific direction in identifying and describing interdependence among economic agents (including rights, duties, (...) liberties and exposure to various acts). The framework adopted and developed in this book relies on the concept of interdependence--that all economic agents are tied together in a legal system given the inherent interdependent nature of transactions in a complex modern global economy. The authors start by developing this framework and then apply it to a variety of settings and empirical examples. Using this new method, economists will be able to reshape their analysis to account for how legal systems and specific legal rules impact economic performance and outcomes. This approach will be of great interest to graduate and advanced undergraduate social science scholars, faculty interested in the intersections of law and economics and the application of legal concepts to impact analysis, and practitioners in the fields of policy, law and economics. (shrink)

In these writings by one of our most creative legal philosophers, Meir Dan-Cohen explores the nature of the self and its response to legal commands and mounts a challenge to some prevailing tenets of legal theory and the neighboring moral, political, and economic thought. The result is an insider's critique of liberalism that extends contemporary liberalism's Kantian strand, combining it with postmodernist ideas about the contingent and socially constructed self to build a thoroughly original perspective on some of the most (...) vital concerns of legal and moral theory.Dan-Cohen looks first at the ubiquity of legal coercion and considers its decisive impact on the nature of legal discourse and communication, on law's normative aspirations and claim to obedience, and on the ideal of the rule of law. He moves on to discuss basic values, stressing the preeminence of individual identity and human dignity over the more traditional liberal preoccupations with preference-based choice and experiential harm. Dan-Cohen then focuses more directly on the normative ramifications of the socially constructed self. Fundamental concepts such as responsibility and ownership are reinterpreted to take account of the constitutive role that social practices--particularly law and morality--play in the formation of the self.Throughout, Dan-Cohen draws on a uniquely productive mix of philosophical traditions and subjects, blending the methods of analytic philosophy with the concerns of Continental philosophers to reconceive the self and its relation to ethics and the law. (shrink)