Like the ownership of physical property, the issues computer software ownership raises can be understood as concerns over how various rights and duties over software are shared between owners and users. The powers of software owners are defined in software licenses, the legal agreements defining what users can and cannot do with a particular program. To help clarify how these licenses permit and restrict users’ actions, here I present a conceptual framework of software rights and duties that is (...) inspired by the terms of various proprietary, open source, and free software licenses. To clarify the relationships defined by these rights and duties, this framework distinguishes between software creators (the original developer), custodians (those who can control its use), and users (those who utilise the software). I define the various rights and duties that can be shared between these parties and how these rights and duties relate to each other. I conclude with a brief example of how this framework can be used by defining the concepts of free software and copyleft in terms of rights and duties. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Following Wesley Hohfeld's pioneering analyses, which demonstrated that the concept of ownership conflated a variety of distinct legal relations, a deflationary regarding those relations as essentially unconnected held sway for much of the subsequent century. In recent decades, this theory has been thought too diffuse; it seems counterintuitive to insist, for instance, that rights of possession and alienation over a property are associated only contingently. Accordingly, scholars such as James Penner and James Harris have advanced theories that revive the (...) concept of ownership, identifying some instances of property as and regarding others as conceptually subsidiary. I propose a new interpretation of the bundle theory, based on David Lewis's idea of among physical particles. I critically examine the major antibundle positions, arguing that their criticisms result from confusion about the claims of the bundle theory, which remains the best account of property rights available. (shrink)

In this article, I review A Theory of Legal Personhood, explaining what I see as its key contributions to animal law scholarship, while situating it against wider jurisprudential contributions that may be of interest to philosophers and legal scholars grappling with the oft-thorny idea of legal personhood, not just for nonhuman animals but for corporations, artificially intelligent machines, and late-term fetuses. The article will explain Kurki's “bundle” theory of legal personhood as a “cluster” concept and analyze the extremely helpful (...) parsing his theory provides in terms of the active and passive “incidents” of legal personhood. I focus much of the piece on Kurki's view of legal “nonpersons” who nonetheless have some rights or incidents of personhood in order to help clarify the challenge Kurki's theory raises for Steven M. Wise and the Nonhuman Rights Project, as the issues surrounding those litigation efforts will likely be familiar to readers here, who will be wondering how this theory interacts with what Wise seeks to achieve. (shrink)

The paper argues that members of future generations have an entitlement to natural resources equal to ours. Therefore, if a currently living individual destroys or degrades natural resources then he must pay compensation to members of future generations. This compensation takes the form of “primary goods” which will be valued by members of future generations as equally useful for promoting the good life as the natural resources they have been deprived of. As a result of this policy, each generation inherits (...) a “Commonwealth” of natural resources plus compensation. It is this inherited “Commonwealth” which members of that generation must then pass on to members of the next generation. Once this picture is accepted, the standard bundle of property rights is problematic, for it takes the owner of a constituent of the Commonwealth to have the right to “waste, destroy or modify” that item at will. This paper therefore presents a revised set of property rights which takes seriously the idea that each generation has an equal claim on the resources that nature has bequeathed us, whilst allowing certain effects on those natural resources by each generation, and a degree of exclusive use of those natural resources owned by an individual. (shrink)

Shepherd appears to endorse something like the following biconditonal regarding qualities and objects. □(An object, O, exists ↔ Some bundle of qualities, Q1, Q2, … Qn exists). There is a growing consensus in the secondary literature that she also takes the right side of this biconditional to ground the left side. I.e. Shepherd is a bundle theorist who takes an object to be nothing but a mass of qualities, or causal powers. I argue here that despite appearances, this (...) interpretation reverses Shepherd's actual view. I.e. I argue that for Shepherd qualities, or causal powers, are grounded in the intrinsic constitutions of objects. In the case of "external objects", these intrinsic constitutions are unknowable to us; in the case of "internal objects", we have direct knowledge of them. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Index to Volume Fifty-SixArticlesBernier, Bernard, National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, 1 : 84-105Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, Chai-sik Chung, 2 : 253-280Buxton, Nicholas, The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, 3 : 392-408Chan, Sin Yee, The Confucian Notion of Jing (Respect), Sin Yee Chan, 2 : (...) 229-252Chong, Kim-chong, Zhuangzi and the Nature of Metaphor, 3 : 370-391Chung, Chai-sik, Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, 2 : 253-280The Confucian Ideal of Harmony, Chenyang Li, 4 : 583-603The Confucian Notion of Jing.(Respect), Sin Yee Chan, 2 : 229-252The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? Jay L. Garfield, 2 : 201-228The Crisis of Knowledge in Islam (I): The Case of al-'āmirī, Paul L. Heck, 1 : 106-135The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, Nicholas Buxton, 3 : 392-408De Reu, Wim, Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, 2 : 281-300The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhaga-vadgītā, Christopher Framarin, 4 : 604-617Framarin, Christopher, The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhagavadgītā, 4 : 604-617Garfield, Jay L., The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? 2 : 201-228Heck, Paul L., The Crisis of Knowledge in Islam (I): The Case of al-'ā mirī, 1 : 106-135Heidegger's Comportment toward East-West Dialogue, Lin Ma and Jaap van Brakel, 4 : 519-566Ho, Chien-hsing, Saying the Unsayable, 3 : 409-427Kantor, Hans-Rudolf, Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538-597) Tiantai Buddhism, 1 : 16-68Lai, Karyn, Li in the Analects: Training in Moral Competence and the Question of Flexibility, 1 : 69-83Li, Chenyang, The Confucian Ideal of Harmony, 4 : 583-603Li in the Analects: Training in Moral Competence and the Question of Flexibility, Karyn Lai, 1 : 69-83Ma, Lin, and Jaap van Brakel, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, Bernard Bernier, 1 : 84-105Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538- 597) Tiantai Buddhism, Hans-Rudolf Kantor, 1 : 16-68Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, Wim De Reu, 2 : 281-300The Role of Time in the Structure of Chinese Logic, Jinmei Yuan, 1 : 136-152Sakya Pandita and the Status of Concepts, Jonathan Stoltz, 4 : 567-582Saying the Unsayable, Chien-hsing Ho, 3 : 409-427Schiltz, Elizabeth, Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, 3 : 451-468Spackman, John, The Tiantai Roots of Dōgen's Philosophy of Language and Thought, 3 : 428-450Stevenson, Frank W., Zhuangzi's Dao as Background Noise, 2 : 301-331Stoltz, Jonathan, Sakya Pandita and the Status of Concepts, 4 : 567-582The Tiantai Roots of Dōgen's Philosophy of Language and Thought, John Spackman, 3 : 428-450 [End Page 709]Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, Elizabeth Schiltz, 3 : 451-468van Brakel, Jaap, and Lin Ma, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566Yuan, Jinmei, The Role of Time in the Structure of Chinese Logic, 1 : 136-152Zhuangzi and the Nature of Metaphor, Kim-chong Chong, 3 : 370-391Zhuangzi's Dao as Background Noise, Frank W. Stevenson, 2 : 301-331Book NotesFenner, David E. W., Introducing Aesthetics (note by James McRae), 3 : 515-516Introducing Aesthetics, by David E. W. Fenner (note by James McRae), 3 : 515-516McRae, James, a book... (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people's freedom and equality provided by rights of political choice, association and expression, and can help to make (...) sure that these are, genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as special rights, because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This (...) contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held active rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other. (shrink)

In this paper, I explore the ways in which consideration of adolescent parents forces us to confront and question common presuppositions about parental rights. In particular, I argue that recognising the right of adolescent mothers not to be forcibly separated from their newborn children justifies rejecting the notion that parental rights are all acquired in the same manner and acquired as a ‘bundle’ of concomitant moral rights. I conclude that children and adolescents who conceive and give (...) birth have some parental rights concerning their newborn children – in particular, the right not to be forcibly separated from those children – even if they do not have the ‘full complement’ of parental rights as we generally characterise these. (shrink)

ABSTRACT: I argue in this article that, contrary to some recent views, Berkeley’s bundle theory of physical objects is incompatible with the thinking that we immediately perceive such objects. Those who argue the contrary view rightly stress that immediate perception of ideas or objects must be non-conceptual for Berkeley, that is, the concept of the object cannot be made use of in the perception, otherwise it would be mediate perception. After a brief look at the texts, I contrast how (...) a direct realist view of immediate perception differs significantly from a bundle theorist’s view. The difference is so great that one rationale for the alternative view, the claim that Berkeley allies himself with common sense by claiming we immediately perceive physical objects, loses plausibility.RÉSUMÉ: Je soutiens dans cet article que, contrairement à certaines interprétations récentes, la théorie de Berkeley sur la collection d’idées relatives aux objets matériels (bundle theory) est incompatible avec la pensée que nous percevons ces objets defaçon immédiate. Ceux qui ont soutenu le contraire remarquent à juste titre que la perception immédiate des idées ou des objets doit être non conceptuelle pourBerkeley : le concept de l’objet ne peut servir lors de la perception, car il s’agirait alors d’une perception médiate. Suite à un rapide tour d’horizon des textes pertinents, je fais ressortir à quel point une théorie réaliste sur la perception immédiate differe d’une théorie sur la collection d’idées (bundle theory). Ces positions diffèrent tant et si bien que le principe d’exégèse suivant lequel Berkeley se réclamerait du sens commun en défendant que nous percevons les objets materiels de manière immédiate doit être remis en question. (shrink)

Whereas previous discussions on ownership of biological material have been much informed by the natural rights tradition, insufficient attention has been paid to the strand in liberal political theory represented by Felix Cohen, Tony Honoré, and others, which treats property relations as socially constructed bundles of rights. In accordance with that tradition, we propose that the primary normative issue is what combination of rights a person should have to a particular item of biological material. Whether that (...) class='Hi'>bundle qualifies to be called “property” or “ownership” is a secondary, terminological issue. We suggest five principles of bodily rights and show how they can be applied to the construction of ethically appropriate bundles of rights to biological material. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people's freedom and equality provided by rights of political choice, association and expression, and can help to make (...) sure that these are, genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This paper outlines key applications of property rights theory from the standpoint of ‘entangled political economy,’ which conceptualises economic and political agents interacting within society. The entangled political economy framework stresses that property rights denote relationships between societal members, and that property rights are the subject of evolutionary change. The nature and role of property rights in an entangled political economy reinforces the ‘bundle of rights’ perspective, challenging notions of property rights that emphasise (...) the primacy of ownership. Far from necessarily imperilling the integrity of a market-based economic order, the bundle orientation inherent in entangled political economy can accommodate extensive market activities grounded in robust property right protections. (shrink)

Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there (...) is a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners’ right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners’ association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people’s freedom and equality provided by rights of political choice, association and expression, and can help to make (...) sure that these are, genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

This study provides a moral justification of the family as a child-bearing and child-rearing institution by arguing that procreation may entitle parents to their children. It begins by observing that the belief that parents have such a right is deeply ingrained in the laws and customs of Western civilization but that at present we have no satisfactory theoretical explanation of this belief; and it further underscores the need for such an explanation by pointing to the conflict between a commitment to (...) equal opportunity and the family. ;Part I first considers the historical arguments philosophers have made on behalf of the family and shows why they fail. It argues that the traditional property argument fails because it interprets parental rights in terms of an absolute property right which is incompatible with the child's rights; that natural affection fails because some parents abuse their children and because adoptive parents may display "natural affection"; and that the best interest of the child fails because it cannot provide parents with a unique claim to their children. ;It then develops the property argument in a new and fruitful way. By replacing the traditional concept of an absolute property right with the modern "bundle of rights" analysis of property, it provides a means of analyzing parental rights in a way that prohibits abuse and is therefore compatible with the child's basic rights. Finally, it examines entitlement theory and argues that, since procreation satisfies its conditions, parents who adequately care for their children are entitled to them. ;Part II examines the nature of the parental entitlement claim. It argues for the rights necessary for paternalistic agency, interprets them according to a standard analysis of ownership, and concludes that a parental right to rear the child according to parental values is consistent with the child's rights. Next it argues that, in excluding others, parents incur a special obligation to do as much as they reasonably can for their child. And finally, it places things in a historical context, argues against an interpretation of parental obligation in terms of needs, and shows how the theory might work in practice. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of solitude, intimacy and confidentiality and shows that, so described, people have legitimate interests in privacy. These interests are both personal and political, and provide the grounds for two different justifications of privacy rights. Though both are based on democratic concerns for the freedom and equality of individuals, these two (...) justifications for privacy can be distinguished because the one is principally concerned with protecting the personal freedom and equality of individuals, while the other is principally concerned with their political equivalents. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, interpreting the content and justification of privacy rights in light of the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

Drawing on a social construction theory of ownership in biological material this paper discusses which differences in biological material might motivate differences in treatment and ownership rights. The analysis covers both the perspective of the person from whom the material originates and that of the potential recipient. Seven components of bundles of rights, drawing on the analytical tradition of Tony Honoré, and their relationship to various types of biological material are investigated. To exemplify these categories the cases of (...) a heart, a kidney, stem cells and hair are used. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing (...) in mind the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

This article compares three frameworks for legal regulation of the human body. Property law systematically favors those who use the body to create commercial products. Yet contract and privacy rights cannot compete with the property paradigm, which alone affords a complete bundle of rights enforceable against the whole world. In the face of researchers' property rights, the theoretical freedom to contract and the meager interest in privacy leave those who supply body parts vulnerable to exploitation.

Ost S. Drs Bramhall and Bawa-Garba and the rightful domain of the criminal ….

Following Elizabeth Anscombe, rights exist within practices. A right consists in a bundle of possible and impossible moves within the relevant social 'game', e.g. the practice of private property. What becomes of basic rights on such a social-constructivist conception? Metaphysically, basic rights do not differ from other rights. The right not to be murdered, however, enjoys a transcendental status within Anscombe's moral philosophy, and this construction might extend to other basic rights: Since practical reasoning (...) is directed at the good life, there can be no sound practical inference concluding in murder. Anscombe's argument for this presupposes a particular conception of human dignity, which is quite similar to the dominant conception in contemporary human rights literature. (shrink)

A legitimate state would have a right to rule. The problem is to understand, first, precisely what this right amounts to, and second, under what conditions a state would have it. According to the traditional account, the legitimacy of a state is to be explained in terms of its subjects’ obligation to obey the law. I argue that this account is inadequate. I propose that the legitimacy of a state would consist in its having a bundle of rights (...) of various kinds, which I specify. Among other things, a legitimate state would have the moral authority to impose and to enforce its law throughout its territory and to enforce its borders. I discuss familiar accounts of the circumstances under which a state would be legitimate, and I argue that none is satisfactory, given my proposal as to what the legitimacy of a state would consist in. Finally, I propose an argument which, I claim, supports a presumption that states are legitimate. (shrink)

Emerging technologies raise the possibility that we may be able to treat trauma victims by pharmaceutically dampening factual or emotional aspects of their memories. Such technologies raise a panoply of legal and ethical issues. While many of these issues remain off in the distance, some have already arisen. In this brief commentary, I discuss a real-life case of memory erasure. The case reveals why the contours of our freedom of memory—our limited bundle of rights to control our memories (...) and be free of outside control—already merit some attention. (shrink)

Most opponents of somatic cell nuclear transfer and embryonic stem cell technologies base their arguments on the twin assertions that the embryo is either a human being or a potential human being, and that it is wrong to destroy a human being or potential human being in order to produce stem cell lines. Proponents’ justifications of stem cell research are more varied, but not enough to escape the charge of obsession with the status of the embryo. What unites the two (...) warring sides in ‘the stem cell wars’ is that women are equally invisible to both: ‘the lady vanishes.’ Yet the most legitimate property in the body is that which women possess in their reproductive tissue and the products of their reproductive labour. By drawing on the accepted characterisation in the common law of property as a bundle of rights, and on a Hegelian model of contract as mutual recognition, we can lessen the impact of the tendency to regard women and their ova as merely receptacles and women’s reproductive labour as unimportant. (shrink)

For decades, both economists and legal scholars have regularly used the metaphor of a ‘bundle of rights’ to describe property. In recent and growing literature, the bundle formulation has been the target of a number of critiques, some of which point to Adam Smith, among others, as a source for an alternative perspective on property. This paper examines Smith's work and argues that Smith is an appropriate authority and focal figure for a traditional, in-rem view of property. (...) It illustrates how Smith's usage of concepts in the civil-law tradition, his appreciation for Hume, and especially his unique theory of the impartial spectator, together make clear that Smith's understanding of property is irreconcilable with the modern bundle formulation. (shrink)

In common law, the traditional rule has been that there is no property in excised human tissue. In an era of widespread commodification of tissue, however, the practical reasons behind this position are increasingly outdated, while the philosophical grounds are paradoxical. This no-property rule has been construed so as to deprive tissue providers of ongoing rights, whereas researchers, universities, and biotechnology companies are prone to assume that once they acquire proprietary rights, those rights are complete and undifferentiated. (...) That position can and should be remedied, drawing on a modified Lockean concept of property in what we have laboured to create, and a more sophisticated jurisprudential understanding of property in the body as a bundle of rights. Particularly in the case of women’s tissues, such as ova and umbilical cord blood, this model can offer more effective protection against the global ‘enclosures’ of bodily tissue. (shrink)

This paper argues that social trust is the emergent product of a complex system of property relations, backed up by a sub-system of mutual monitoring. This happens in a context similar to Ostrom’s commons, where cooperation is necessary for the management of resources, in the absence of external authorities to enforce sanctions. I show that social trust emerges in this context because of an institutional structure that enables individuals to develop a generalized disposition to internalize the external effects of their (...) actions. This is made possible by the “patrimonial” nature of this structure. (shrink)

This article begins with discussions of rationalist, a priori and empiricist, a posteriori thinking in philosophy. It then argues that classically, sociology is rationalist or a priori. Sociology — Weber, Simmel, Durkheim and Marx — moves from Kant's epistemological a priori to the social a priori. It moves from the question of how knowledge is possible to the question of how society is possible. This question of the possibility of society becomes quickly one of social control and social order in (...) functionalism and Parsons. The article argues instead for an aposteriorist, de facto empiricist sociology that breaks with this ultimately normative question. This aposteriorist sociology would instead investigate social processes in their very factuality, their open-endedness, complexity, and path dependency. A priorism in sociology, I would argue, is dominant in both positivism and phenomenology. The article opposes to phenomenology's transcendentaI rationalism a `transcendental empiricism' that is illustrated with Edmund Burke's English and aposteriori aesthetics of the sublime. Sociology today needs to be relevant to study of `emerging' nations like China. The article argues for an aposteriorist, empiricist sociology here, and looks at debates on property law in today's China. Here we look at rationalist and a priori notions of clear, distinct and divisible property in Continental reception of Roman law. We counterpose to this English, empiricist (a posteriori) Common Law notions of property as a bundle of rights, in which property is not clear and distinct but vague like a boundary object. We look at how this is instantiated in China. With François Jullien, we contrast a Chinese, effectively empiricist, aposteriorist notion of the universal to Western rationalist and a priori universalism. We look at the implications for international geopolitics and a possible Chinese route to democracy. With Jullien, we counterpose an aposteriorist Chinese notion of `activity' to the Western a priori notions of `action' found in Weber and Parsons. The Chinese `activity' is more processual, more relational, less goal-oriented, more path-dependent than our Western notion of `action'. The article argues that in the twenty-first century when national social control is partly displaced by global uncertainty, and when the ascendancy of the West is coming increasingly under question, that such an empiricist, aposteriorist sociology is suitable. (shrink)

This paper traces the development of corporate citizenship as a way of framing business and society relations, and critically examines the content of contemporary understandings of the term. These conventional views of corporate citizenship are argued to contribute little or nothing to existing notions of corporate social responsibility and corporate philanthropy. The paper then proposes a new direction, which particularly exposes the element of "citizenship". Being a political concept, citizenship can only be reasonably understood from that theoretical angle. This suggests (...) that citizenship consists of a bundle of rights conventionally granted and protected by governments of states. However, the more that governmental power and sovereignty have come under threat, the more that relevant political functions have gradually shifted towards the corporate sphere – and it is at this point where "corporate" involvement into "citizenship" becomes an issue. Consequently, "corporate citizens" are substantially more than fellow members of the same community who cosily rub shoulders with other fellow citizens while bravely respecting those other citizens'' rights and living up to their own responsibility as corporations – as the conventional rhetoric wants us to believe. Behind this relatively innocuous mask then, the true face of corporate citizenship suggests that the corporate role in contemporary citizenship is far more profound, and ultimately in need of urgent reappraisal. (shrink)