Contemporary academic and policy discussions of corporate governance tend to accord primacy to the interests of shareholders. While the primacy (descriptive or prescriptive) of shareholders is argued for in various ways, others seek to promote a wider stakeholder model of the firm and its governance. In both cases, the interests of creditors tend to be neglected. In this paper, the fundamental position of creditors in a system of corporate law that offers limited liability is reasserted and explained, and (...) the implications explored. It is demonstrated that there are, in effect, two modes of governance possible for a limited liability corporation: the “normal” mode, when shareholders’ interests are primary, and the “distressed” mode, when creditors’ interests are paramount. As a result of this analysis, writers on corporate governance who are influenced by certain managerial myths or economic theories of the firm are encouraged to view the position of shareholders in a more informed light. Writers on business ethics, who often find themselves contending, perhaps implicitly, with inappropriate understandings of the nature of business corporations and their governance, are similarly alerted to the weakness of certain positions perceived as antithetical to their agenda. Finally, business ethicists who advocate a stakeholder perspective are encouraged to recognize the position of creditors and to pay more attention to them as a stakeholder group. (shrink)

The Civil Code of Lithuania re-established enterprise (business) as a self-sufficient object of civil rights and introduced several legal transanctions with it, the so- called asset deals (sale-purchase of enterprise and lease of enterprise). Since every transfer of enterprise comprises the transfer (delegation) of debts to the new owner, the legal regulation on asset deals must be orientated to the protection of creditors’ rights. However, the legal practice showed that the existing legal regulation regarding asset deals, in particular the (...) mechanism of the protection of creditors’ rights, is complex, and thus unappealing to legal practitioners. Therefore, this research focuses on an analysis of the legal regulation of the mechanism of the protection of creditors’ rights applicable to asset deals and its impact on the civil turnover of enterprise as an object of civil rights. In order to thoroughly examine the problem of the efficient mechanism of the protection of creditors’ rights, the national legal regulation is analysed in comparison to the legal systems of France, Germany and Russia. (shrink)

The fight for emancipation takes place on different levels, and one of them is the level of contemporary financial capitalism as debt-economy. Debt can be a major tool of control and exploitation in that it produces subordinate subjects situated in exchange relations of debt and credit. Recent work on financial debt and the debt-economy has, however, not taken gender adequately into account in philosophical definitions of indebted subjects. Gender analysis discloses how the debtor–creditor relationship is based on a contractarian idea (...) of the indebted subject as an autonomous moral agent, and on a masculine, that is, a-relational understanding of what counts as debt and what does not in the contemporary debt-economy. In contrast to atomistic notions of the subject in liberal, contractarian theories, relational notions of the subject as advanced in care ethics are a better point of departure for capturing the interdependence of subjects within a debt-economy as a core feature of a nonsustainable monetary system. On the basis of such analysis, care ethics also offers means for imagining ways of emancipation from private and public problem credit in order to make financial systems more sustainable and more just. (shrink)

At present, Third World countries owe over one trillion dollars to the developed Western nations; much of the debt is held by the leading international commercial banks. The debt of six Latin American countries alone — Argentina, Brazil, Chile, Mexico, Peru, and Venezuela — is over $330 billion, of which $240 billion is owed to commercial banks. Let us immediately narrow our focus to loans made by the major international commercial banks to Third World governments. We shall not be concerned (...) with government-to-government loans, or private-party-to-private-party loans, or with debt owed to the World Bank or the International Monetary Fund. The bank-to-government loans — the so-called “sovereign loans” — are the most economically troublesome and morally interesting. The largest lenders, at least with respect to the Latin American countries, are the American banks Citibank, Chase Manhattan, Bank of America, Manufacturers Hanover, and Chemical Bank. About fifteen Third World countries have serious debt problems, including the largest: Brazil, Mexico, and Argentina. (shrink)

As it is known, there is no rule satisfying Additivity in the complete domain of bankruptcy problems. This paper proposes a notion of partial Additivity in this context, to be called µ-additivity. We find that µ-additivity, together with two quite compelling axioms, anonymity and continuity, identify the Minimal Overlap rule, introduced by Neill (1982).

Policy-makers in Washington and other capitals of G-7 countries have been flogging the idea that the functioning of the world’s financial markets must be improved by making it easier for insolvent governments to obtain debt relief.

The debtor-creditor relation, which is at the heart of this book, sharpens mechanisms of exploitation and domination indiscriminately, since, in it, there is no distinction between workers and the unemployed, consumers and producers, working and non-working populations, between retirees and welfare recipients. They are all "debtors," guilty and responsible in the eyes of capital, which has become the Great, the Universal, Creditor.--from The Making of the Indebted Man Debt -- both public debt and private debt Has become a major concern (...) of economic and political leaders. In The Making of the Indebted Man, Maurizio Lazzarato shows that, far from being a threat to the capitalist economy, debt lies at the very core of the neoliberal project. Through a reading of Karl Marx's lesser-known youthful writings on John Mill, and a rereading of writings by Friedrich Nietzsche, Gilles Deleuze, Felix Guattari, and Michel Foucault, Lazzarato demonstrates that debt is above all a political construction, and that the creditor/debtor relation is the fundamental social relation of Western societies.Debt cannot be reduced to a simple economic mechanism, for it is also a technique of "public safety" through which individual and collective subjectivities are governed and controlled. Its aim is to minimize the uncertainty of the time and behavior of the governed. We are forever sinking further into debt to the State, to private insurance, and, on a more general level, to corporations. To insure that we honor our debts, we are at once encouraged and compelled to become the "entrepreneurs" of our lives, of our "human capital." In this way, our entire material, psychological, and affective horizon is upended and reconfigured. How do we extricate ourselves from this impossible situation? How do we escape the neoliberal condition of the indebted man? Lazzarato argues that we will have to recognize that there is no simple technical, economic, or financial solution. We must instead radically challenge the fundamental social relation structuring capitalism: the system of debt. (shrink)

The idea that jobs should be awarded purely on merit has become something of an axiom, but the moral basis of it remains elusive. If employers are under a duty to appoint the most qualified candidate, to whom exactly is this duty owed, and on what grounds? I distinguish two kinds of answers to this question. Candidate-centred arguments are those according to which qualifications generate entitlements for their bearer, such that the most qualified applicant for a job has some moral (...) claim or right to it. But of course job-seekers are not the only parties with a stake in personnel selection decisions. The existing employees of an organisation, its clients and creditors, its shareholders, and society more generally are also affected. The duty to hire on merit, one might argue, is owed ultimately to one or more of these “stakeholder” groups. I refer to arguments with this structure as stakeholder-centred. The purpose of the paper is to carefully distinguish, organise and scrutinise various arguments within these camps; to sketch a map of the ethical terrain, so to speak. What the sketch reveals is that both the scope and weight of the duty to hire on merit — the exceptions to it, and the stringency of it — vary depending on its grounds. The argumentative strategy that we adopt to justify meritocracy, then, is of both theoretical and practical importance. (shrink)

The debtor-creditor relation, which is at the heart of this book, sharpens mechanisms of exploitation and domination indiscriminately, since, in it, there is no distinction between workers and the unemployed, consumers and producers, working and non-working populations, between retirees and welfare recipients. They are all "debtors," guilty and responsible in the eyes of capital, which has become the Great, the Universal, Creditor.--from The Making of the Indebted Man Debt -- both public debt and private debt -- has become a major (...) concern of economic and political leaders. In The Making of the Indebted Man, Maurizio Lazzarato shows that, far from being a threat to the capitalist economy, debt lies at the very core of the neoliberal project. Through a reading of Karl Marx's lesser-known youthful writings on John Mill, and a rereading of writings by Friedrich Nietzsche, Gilles Deleuze, Félix Guattari, and Michel Foucault, Lazzarato demonstrates that debt is above all a political construction, and that the creditor/debtor relation is the fundamental social relation of Western societies.Debt cannot be reduced to a simple economic mechanism, for it is also a technique of "public safety" through which individual and collective subjectivities are governed and controlled. Its aim is to minimize the uncertainty of the time and behavior of the governed. We are forever sinking further into debt to the State, to private insurance, and, on a more general level, to corporations. To insure that we honor our debts, we are at once encouraged and compelled to become the "entrepreneurs" of our lives, of our "human capital." In this way, our entire material, psychological, and affective horizon is upended and reconfigured. How do we extricate ourselves from this impossible situation? How do we escape the neoliberal condition of the indebted man? Lazzarato argues that we will have to recognize that there is no simple technical, economic, or financial solution. We must instead radically challenge the fundamental social relation structuring capitalism: the system of debt. (shrink)

To what extent are questions of sovereign debt a matter for political rather than scientific or moral adjudication? We answer that question by defending three claims. We argue that (i) moral and technocratic takes on sovereign debt tend to be ideological in a pejorative sense of the term, and that therefore (ii) sovereign debt should be politicised all the way down. We then show that this sort of politicisation need not boil down to the crude Realpolitik of debtor-creditor power relations—a (...) conclusion that would leave no room for normative theory, among other problems. Rather, we argue that (iii) in a democratic context, a realist approach to politics centred on what Bernard Williams calls ‘The Basic Legitimation Demand’ affords a deliberative approach to the normative evaluation of public debt policy options. (shrink)

The second essay of Nietzsche's Genealogy of Morality (GM) offers a naturalistic and developmental account of the emergence of conscience, a faculty uniquely responsive to remembering and honoring obligations. This article attempts to solve an interpretive puzzle that is invited by the second essay's explanation of nonmoral obligation, prior to the capacity to feel guilt. Ostensibly, Nietzsche argues that the conscience and our concept of obligation originated within contractual (“creditor-debtor”) relations, when creditors punished delinquent debtors (GM II:5). However, this (...) interpretation, which I call the contractualist reading, is incoherent and subject to an insoluble bootstrapping problem. I argue instead that Nietzsche provides two accounts of nonmoral obligation in the second essay, and that the conscience originated in the morality of custom to track rule prohibitions (“I will nots” [GM II:3]), which Nietzsche conceives of as involuntary or reciprocal obligations that, unlike contractual debts, do not require the making of promises. (shrink)

In contemporary society, private debt has substituted for other ways of financing the consumption of basic social goods like housing, education, and medical care. This is at least partially due to increased inequality, which has allowed costs to rise faster than median incomes, as well as due to stagnating public provisions. Debt-financed access to basic goods is problematic because it creates new kinds of unfreedom and undermines the value of the freedoms that the indebted do manage to keep or acquire. (...) Debt-financing qualifies freedom in this way by placing certain kinds of conditions on our acquisition and consumption of the goods that we buy. These conditions compromise the very freedom that we seek and value when acquiring and consuming these goods. It does so, first, by transferring the burden of providing basic goods from the public to private individuals, thereby further constraining those who already face the most constraints in accessing basic goods. And, second, the conditional character of debt-financed consumption undermines the value that we attach to having basic social goods. At the very least, this gives us strong reasons to want to regulate the conditions that creditors can place on debtors, at least with respect to basic social goods. Further, at best, the most desirable alternative to debt-financed consumption is the unconditional public provision of basic goods like housing, education, and medical care. (shrink)

Purpose Cybercrime is a prevalent and serious threat to publicly traded companies. Defending company information systems from cybercrime is one of the most important aspects of technology management. Cybercrime often not only results in stolen assets and lost business but also damages a company’s reputation, which in turn may affect the company’s stock market value. This is a serious concern to company managers, financial analysts, investors and creditors. This paper aims to examine the impact of cybercrime on stock prices (...) of a sample of publicly traded companies. Design/methodology/approach Financial data were gathered on companies that were reported in news stories as victims of cybercrime. The market price of the company’s stock was recorded for several days before the news report and several days after. The percentage change in the stock price was compared to the change in the Dow Jones Industrial average to determine whether the stock price increased or decreased along with the rest of the market. Findings Stock prices were negatively affected in all time periods examined, significantly so in one period. Practical implications This paper describes cases concerning cybercrime, thereby bringing attention to the value of cybersecurity in protecting computers, identity and transactions. Cyber security is necessary to avoid becoming a victim of cybercrime. Specific security improvements and preventive measures are provided within the paper. Preventive measures are generally less costly than repairs after a cybercrime. Originality/value This is an original manuscript that adds to the literature regarding cybercrime and preventive measures. (shrink)

The general relationship between a bank and customer is contractualin nature. For conventional banks, the banker-customer relationship is basedon the debtor-creditor relationship with the bank earning a profit from a spreadmade between interest charged on the borrower of funds and interest paid tothe depositors. In Islamic banking, due to the different contractual transactionsof Islamic banking operation, it is based on a multi-contractual relationships.However, bank consumers perceive that banks enhance their profits by treatingconsumers unfairly and failing to take responsibility when things (...) go wrong.This study examines the duty of care of conventional and Islamic banks towardsbank consumers. It also focuses on the Islamic banks’ duty of care from theperspective of maqāṣid al-Sharī‛ah, to those who use their services. Adoptingthe doctrinal analysis method, this study analyses and compares the duty ofcare of both conventional and Islamic banks. Findings of this study includethat misconduct by banking industries remains rife and that unfair treatment ofcustomers are frequent. As for Islamic banks, the maqāṣid al-Sharī‛ah basedduty of care is found missing in their Islamic banking operation. This studysuggests that the duty of care for both banks should be reformed to improvebank consumers’ experience. For Islamic banks, an improved standard is usefulin performing their duties based on Islamic values. (shrink)

Hare believeded to have good reasons for stressing tho role of falsification in justifying a moral judgment. Taking this seriously, we cannot accept the objection that he should have tailored his creditor example in terns of pemission rather than in terms of prescription. Difficulties, howerer, are due to the fact that, according to Hare, respectively my volitional reaction to a fictional situation is part and parcel of moral reasoning; for this kind of evidence turns out to he no less 'verifying' (...) than 'falsifying'. So it seems that the distinction between verificationism and falsificationism, though useful in metascience, cannot properly be transferred to metaethics. (shrink)

Economists and legal scholars routinely posit an implicit contract between Japanese firms and their principal lender. Under this arrangement, the bank implicitly agrees to rescue the firm when times turn bad. Out of court, it rescues the firm from insolvency. Not only does it save the investments specific to the troubled firm, it lowers the use of costly bankruptcy proceedings and cuts the costs of those bankruptcy procedures firms do occasionally invoke. Given the creditor-shareholder conflicts of interest that arise as (...) firms approach insolvency, such arrangements would seem unstable. Yet according to a long sociological tradition, conflicts of interest matter less in Japan than in the West. According to the emerging economic and legal tradition, Japanese economic actors do face those conflicts, but keep them in check through reputational concerns, close-knit ties, and government supervision. Using two datasets of troubled firms from the 1970s and 1980s, we ask whether Japanese main banks in fact rescue distressed borrowers. We find no evidence that they do: large Japanese firms fail; when large firms approach insolvency, main banks do not increase the share of the firm’s debt they bear; stronger ties between distressed firms and their main bank do not facilitate loans; and troubled firms do not try to preserve their main bank relationship. All told, the claim that Japanese banks ever implicitly agreed to rescue firms is sheer myth. That Japanese banks let troubled firms fail is no recent development; it has been thus for decades. Conflicts of interest do indeed matter in Japan and long have. They matter enough to prevent precisely the incentive-incompatible rescue deals that scholars in the field so routinely posit. (shrink)

INTERWOVEN IN THE COMPLEX TEXTURE of Solomon Maimon's system are strands of thought originating in the theories of his avowed creditors. Maimon is one of the first modern philosophers who acknowledges his debt to diverse philosophical trends and traditions. Among his major creditors, Maimon includes Maimonides and Spinoza. The present analysis, however, will be restricted to an exploration of his debt to Leibniz, Hume, and Kant.

Among the most complicated issues in the law of delict, in the case of multiple debtors, is to determine the scope of each co-debtor’s liability. The rule of proportional liability clearly favours debtors more than the aggrieved party. And, on the contrary, the solidary liability best suits the interests of the aggrieved party as the risk of co-debtor’s insolvency is transferred to the debtors. Furthermore, in the latter case, the debtors who attempt to allocate the scope of their liability among (...) themselves and fail to reach an agreement have to undergo two legal procedures: the first concerning the compensation to the creditor, and the second concerning the determination of the scope of their liability among themselves. Adequate balancing of the interests of the two parties (the debtor and the creditor) lies among the major tasks of tort law. Therefore, he law should seek specific rules instrumental in determining the scope of the co-debtor’s liability in the case of multiple debtors. The application of the rule of solidary liability is based on the assumption that individuals whose joint actions inflicted damage must compensate it together. (shrink)

Traditionally, civil law jurisdictions in Scandinavia and the continent of Europe have not been willing to acknowledge the appropriateness of extending bankruptcy relief to consumer debtors and discharging any part of their debts. The opposition was based on the importance of upholding the sanctity of contractual obligations: pacta sunt servanda. This attitude stood in contrast to the fresh start philosophy of US bankruptcy law, which embraced a more forgiving attitude, focusing on the reintegration of the insolvent debtor into society, substantially (...) free of debt, after he has filed for bankruptcy and surrendered his non-exempt property for distribution among his creditors. The relaxation of credit controls and the rapid increase in the number of insolvent debtors in the late 1980s and early 1990s has forced many continental jurisdictions to reconsider their traditional opposition. They have since adopted debt adjustment plans providing various forms of debt relief to overcommitted debtors but only a substantial number of years after the initial proceedings. The American reaction has gone in the opposite direction. With the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the United States has reversed its century old liberal fresh start tradition. The 2005 Act imposes a formidable means test as well as other preconditions to determine whether a debtor has sufficient discretionary income to pay off twenty percent of his or her unsecured debts under a Chapter 13 plan. If the answer is yes, the debtor is denied the right to file a bankruptcy petition under Chapter 7 of the Bankruptcy Code. This paper asks whether these developments on opposite sides of the Atlantic suggest that facts on the ground are more important than dogma and deeply entrenched beliefs. The author’s answer is that while there is certainly a trend towards convergence between continental European and US approaches to consumer insolvency, it is much too soon to speak of a common culture and a common approach. He notes, however, that Commonwealth jurisdictions have long adopted a means test to determine a debtor’s eligibility for discharge from debt and suggests that continental scholars would have done better to study the Commonwealth experience as embodying a suitable compromise than to flirt with the US fresh start philosophy, only to reject it as too alien to the continental moral sense. (shrink)

There is a fundamental disconnect between the public discourse about sovereign and external debt in comparison to private domestic debt. The latter is predominantly viewed through a Humean lens, which sees economic morality in terms of contingent social institutions, justified by the valuable goods they realize; while sovereign and external debt is viewed through a Lockean lens, which sees property, contract, and debt as possessing an intrinsic moral quality, independent of social context or consequences. This Article examines whether this Lockean (...) perspective on sovereign and external debt is compatible with the dominance of Humean approaches to the domestic economy. It considers and rejects the most plausible argument for reconciling these views, which emphasizes the different qualities of cooperation in the international and domestic economies. It further argues that many standard objections to a Humean approach to sovereign debt suggest, not the Lockean approach, but rather a Hobbesian international moral skepticism. Concluding that the Lockean approach is unmotivated, this Article instead advances a Humean account of sovereign debt and default. It shows how taking seriously the demand for institutional justification and the idea of persons and peoples as free and equal provides an account of the duties of states—whether creditors, debtors or third parties—in sovereign debt crises. It further examines the implications of each approach for democratic choice about sovereign default. (shrink)

Given the increasing importance attached to both corporate social responsibility (CSR) and corporate governance, this study investigates the association between these two complimentary mechanisms used by companies to enhance relations with stakeholders. Consistent with both legitimacy and stakeholder theory and controlling for industry profile, firm size, stockholder power/dispersion, creditor power/leverage, and economic performance, our analysis of the annual reports for a sample of 222 listed companies suggests that firms providing more CSR information: have better corporate governance ratings; are larger; belong (...) to higher profile industries; and are more highly leveraged. Our findings support the limited prior research suggesting a link between corporate governance quality and CSR disclosure in company annual reports and suggest that, rather than mandating specific disclosures, regulators might be better served focussing on corporate governance quality as a way of increasing CSR disclosures. (shrink)

The fundamental ethical problem in bankruptcy is that insolvents have promised to pay their debts but can not keep their promise. The Ethics of Bankruptcy examines the morality of bankruptcy. The author compares and contrasts the Humean doctrine of promises as useful conventions with the Kantian view of autonomous agency constituting promissory obligations; he explores ethical concerns raised by forgiveness, utilitarianism and distributive justice and the moral aspects of insolvents' contractual, fiduciary, tortious and criminal liability. Finally, the author assesses recent (...) bankruptcy law reforms. Bankruptcies severly hurt creditors and society. For the insolvents and their families the experience is painful and stigmatising, yet philosophers have paid little attention to the moral aspects of this violent social phenomenon. The Ethics of Bankruptcy is the first comprehensive study that employs the tools of ethics to examine the controversies surrounding insolvency, which makes valuable and sometimes controversial reading in a decade recovering from the Recession. (shrink)

When can we say that a debt crisis has been resolved fairly? An often overlooked but very important effect of financial crises and the debts that often engender them is that they can lead the crisis countries to increased dependence on international institutions and the policy conditionality they require in return for their continued support, limiting their capabilities and those of their citizens to exercise meaningful control over their policies and institutions. These outcomes have been viewed by many not merely (...) as extremely unfortunate and regrettable, but also as deeply unfair. And indeed, increasingly potent popular movements have pressured governments, financial institutions, and the financial community to seek what they take to be fairer solutions to debt crises. The merits of these programs and proposals for dealing more fairly with sovereign debt remain hotly disputed. In this essay, we try to take a step back from the political fray and examine some more fundamental considerations that seem relevant to assessing the fairness of current arrangements governing economic exchanges related to debt contracts and alternatives that have been proposed to them.Our discussion is organized into seven sections. First, we characterize briefly the concept of fairness and its role in social evaluation. Second, we clarify what sovereign debt is, and, third, the ethical statuses that particular sovereign debts can have. Fourth, we identify and describe the main features of current practices related to sovereign debt. Fifth, we describe an "ideal picture" of creditor/debtor relations. We argue that in such a scenario a broad range of ethical considerations can plausibly be invoked in support of practices that closely resemble those presently governing sovereign debt. Sixth, we draw attention to the many ways in which in reality the relations between sovereign debtors and their creditors differ markedly from the relationships between the creditor and debtor in the ideal picture. Because of this, many of the ethical considerations that would support present practices were relations between sovereign debtors and their creditors to resemble more closely those depicted in the ideal picture fail to do so under present circumstances. We conclude, moreover, that the remaining ethical considerations that might be advanced in support of the present system are at best quite inconclusive. Finally, we describe briefly specific reform proposals to current practices. While we will not attempt to show that these proposals would necessarily make the rules governing economic exchanges relevant to sovereign debt more fair, we conclude, in light of our earlier analysis, that they must be given much more serious consideration than they have so far received in policy circles. Indeed, there are strong prima facie reasons to believe that some combination of these proposed policies might prevent or mitigate some of the most ethically regrettable outcomes of present practices and norms by changing the incentives of sovereign borrowers and those who lend to them. (shrink)

This introduction frames the articles collected in the special section as the outcome of a process of ‘self-education’ taking place in the Italian free university network UniNomade 2.0 between 2010 and 2013. The open seminars and conferences organized by UniNomade 2.0 took as their object of inquiry the concept of the Common, while the articles selected focus in particular on the sovereign debt crisis of the European Union following the global financial crisis of 2008. The introduction thus summarizes the overall (...) approach of contemporary ‘post-operaist’ authors such as Toni Negri, Christian Marazzi, Maurizio Lazzarato, Andrea Fumagalli and Stefano Lucarelli, and Carlo Vercellone to the new role of financial capital, the transformation of money, the material constitution of Europe, the role played by the relationship between debtors and creditors, and the possibilities opened by the concept of Commonfare for struggles against austerity. (shrink)

Zusammenfassung: Freundschaft ist ein wichtiges Thema der aristotelischen Moraltheorie. Aristoteles versteht unter Freundschaft die optimale Form der Beziehung, in der sich die Beteiligten gegenseitig schätzen und Wohltaten leisten. Im Rahmen seiner Freundschaftstheorie hat Aristoteles auch eine Auffassung der Freundschaft zwischen Eltern und Kindern entworfen. Im Vergleich zu seiner allge-meinen Freundschaftstheorie haben seine Ansätze zur Freundschaft zwischen Eltern und Kindern sowohl in der historischen als auch in der systematischen Forschung wenig Aufmerksamkeit gefunden. Das Ziel dieses Artikels ist es, die Auffassung dieser (...) speziellen Beziehung im Kontext seiner Moral- und Freundschaftstheorie darzustellen, zu interpretieren, aber auch weiterzuentwickeln bzw. zu vervollständi-gen. Zudem wird eine kritische Beurteilung sowie Korrektur einiger Aspekte dieser Theorie, insbesondere der Gläubiger-Schuldner-Auffassung der Eltern-Kinder-Beziehung, vorgenommen. Diese Auseinandersetzung mit Aristoteles’ Theorie führt zu einer klareren, systematischeren, aber auch attraktiveren und angemesseneren aristotelischen Theorie der Eltern-Kinder-Freundschaft, als sie in den Schriften des Aristoteles vorliegt. -/- Summary: Friendship (philia), the optimal form of a relationship, in which the friends love and do good things for each other, is an important theme of Aristotle’s ethics. In the framework of his friendship theory, Aristotle also outlined an account of the specific friendship emerging within the relationship between parents and their children. In comparison to his general theory of friendship, which has been widely discussed both by historians of philosophy and by ethicists, has this account received little at-tention. The objective of this article is to present and interpret, but also to develop and qualify, this account of parent-child friendship in the context of Aristotle’s general friendship theory. I shall also suggest that some aspects of this theory, in particular the debtor-creditor account of filial duties, need to be reassessed. This interpretation and discussion should yield a clearer, more systematic but also more attractive and adequate Aristotelian account of the optimal parent-children relationship than the one we find in the texts of Aristotle. (shrink)

In the present paper we argue that the theory of contracts embraced by many libertarian scholars and relied upon by them in sundry important debates (e.g. over morality of the fractional reserve banking or loan maturity mismatching etc.), that is, the title transfer theory of contracts (TTT) should be rejected as not being able to account for the binding force of future-oriented contracts, including contracts deemed enforceable by those scholars themselves. The TTT claims that the only contracts that should be (...) legally binding are these where the debtor’s failure to abide by them constitutes a violation of the creditor’s private property rights. However, as we argue, no default of the debtor in a future-oriented contract can in itself amount to such a violation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:diacritics 34.1 (2004) 3-17 [Access article in PDF] Universal Shylockery Money and Morality in The Merchant of Venice Simon Critchley Tom McCarthy What if Nietzsche were a Jew, and a mean-minded Venetian Jew at that? We'd like to begin with the thought experiment of imagining The Merchant of Venice as a genealogy of morality and imagining Shylock as Nietzsche. What is The Merchant of Venice about? What is at (...) stake in this oddly inside-out drama, where a piece of good old Elizabethan comic Jew-baiting rotates 180 degrees into a devastating study of Christian anti-Semitism only to flip back into what it seemed to deny? Our initial hypothesis is that it is nothing less than an inquiry into the origin of our moral concepts of justice, good and bad, and more particularly guilt, law, mercy, and love. It is here that a link with Nietzsche suggests itself, particularly with the Second Essay of On the Genealogy of Morals.* * *How do we breed an animal with the right to make promises? For Nietzsche, the human being is an originally forgetful creature, like a young child. To make this originally forgetful creature remember requires physical discipline; it behooves punishment. The teaching of morality is never gentle; it never droppeth from heaven like gentle rain. On the contrary, if something is to be retained in memory, it must be burned in. The origin of memory lies in pain and cruelty: "Man could never do without blood, torture and sacrifices when he felt the need to create a memory for himself" [GM 61]. Nietzsche's first, astonishing hypothesis in the Second Essay is that the origin of concepts like responsibility and conscience lies in cruelty—cruelty administered and maintained through a corporal and corporeal regime. Further, as religions are systems of cruelty, all forms of asceticism originate in the same painful place. "Consider the German punishments," Nietzsche proposes—and we all know that there's nothing quite like the German punishments: stoning, breaking on the wheel, piercing with stakes, tearing apart or trampling with horses, boiling in oil, flaying alive, cutting straps from the flesh, smearing the wrongdoer with honey and leaving him to the flies in the blazing sun. As Nietzsche quips, with magnificent understatement, "With the aid of such images and procedures one finally remembers five or six 'I will not's'" [GM 62]. It is on the basis of this burned-in memory of cruelty that good, decent, upright burghers such as ourselves acquired the habit of moral reasoning:Ah, reason, seriousness, mastery over affects, the whole sombre thing called reflection, all these prerogatives and showpieces of man: how dearly they have been bought! How much blood and cruelty lie at the bottom of all "good things." [GM 62] [End Page 3]"Dearly bought": let's hold onto that trope of purchasing. In another extraordinary passage of the Second Essay, Nietzsche explains the origin of thinking itself in terms of economic activity:Setting prices, determining values, contriving equivalences, exchanging—these preoccupied the earliest thinking of man to so great an extent that in a sense they are thinking [das Denken ist]. [GM 70] In the beginning was trade. Human activity begins with exchange, with the to and fro of buying and selling, which are forms of life older than all other social alliances and organization. It is from here, Nietzsche insists, that human beings arrive at the first moral canon of justice:"Everything has its price; all things can be paid for"—the oldest and most naïve moral canon of justice, the beginning of all "good-naturedness," all "fairness," all "good will," all "objectivity" on earth. [GM 70] Which brings us to the origin of das Bewusstsein der Schuld and schlechte Gewissen, the consciousness of guilt and bad conscience. Nietzsche's hypothesis here, and our theme is beginning to come into focus, is that the origin of guilty conscience lies in the relation between a creditor and debtor, Glaubiger und Schuldner. The spiritual concept of guilt, Schuld, originates in the very material concept of Schulden... (shrink)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1917 edition. Excerpt:... (6) Columns for Discount on Purchases and Discount on Notes on the same side of the Cash Book; (c) Columns for Discount on Sales and Cash Sales on the debit side of the Cash Book; (d) Departmental columns in the Sales Book and in the Purchase Book. (...) Controlling Accounts.--The addition of special columns in books of original entry makes possible the keeping of Controlling Accounts. The most common examples of such accounts are Accounts Receivable account and Accounts Payable account. These summary accounts, respectively, displace individual customers' and creditors' accounts in the Ledger. The customers' accounts are then segregated in another book called the Sales Ledger or Customers' Ledger, while the creditors' accounts are kept in the Purchase or Creditors' Ledger. The original Ledger, now much reduced in size, is called the General Ledger. The Trial Balance now refers to the accounts in the General Ledger. It is evident that the task of taking a Trial Balance is greatly simplified because so many fewer accounts are involved. A Schedule of Accounts Receivable is then prepared, consisting of the balances found in the Sales Ledger, and its total must agree with the balance of the Accounts Receivable account shown in the Trial Balance. A similar Schedule of Accounts Payable, made up of all the balances in the Purchase Ledger, is prepared, and it must agree with the balance of the Accounts Payable account of the General Ledger." The Balance Sheet.--In the more elementary part of the text, the student learned how to prepare a Statement of Assets and Liabilities for the purpose of disclosing the net capital of an enterprise. In the present chapter he was shown how to prepare a similar statement, the Balance Sheet. For all practical... (shrink)

In the early nineteenth century, authoritative treatise writers such as James Kent and Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trust law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental English trust doctrines. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trust law. Irreducible settlor power (...) over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations, which flowed from these basic doctrinal choices. The changes made to American trust doctrine yield a paradox for the legal, social and economic historian, namely that republican America ended up with a more dynastic property law, more wedded to dead hand control and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. The American abandonment of free alienability of beneficial interests and the corresponding reduction of the beneficiary’s powers over trust assets may have been rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market, though disparities between jurisdictions remain to be explained. (shrink)

Under the market economy, a contract serves as the main regulatory instrument of mutual rights and obligations of private law subjects. Many different types of contracts allow people to satisfy their needs and to achieve the desired results. Most contracts are concluded subject to established common criteria, yet almost every type of contract has also its own specifics. The article examines the marriage contract with its particular features (subjects, content, etc.) and analyses its complex nature and its main purpose. The (...) institution of marriage contract is relatively poorly covered by academic research in Lithuania (academic papers on legal science provide only patchy analysis of these contracts); case law in the resolution of arguments originating from such contracts is also limited and thus not completely established. Despite controversial attitudes towards the purpose of marriage contract, the numbers of concluded prenuptial and postnuptial agreements increase from year to year, i.e. more and more individuals express their will to specify the content of property obligations and to define the legal regime of property. These contracts are usually concluded to avoid unpredictable division of property in case of divorce and to protect family members against possible future claims of third parties (creditors). Bearing in mind that legal provisions governing marriage contracts are subject to diverse interpretation, analysis of this institution appears timely and relevant. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:IntroductionMarc Redfield (bio)In recent years, and particularly in the United States, the concept of addiction has come to operate as one of those rhetorical switching points through which practically any discourse or practice or experience can be compelled to pass. As Eve Sedgwick points out in a well-known essay, one can, in contemporary parlance, claim to be addicted not just to illegal or dangerous substances, but also to forms (...) of activity or consumption—work, eating, exercise—that constitute officially approved ways to pursue happiness in middle-class society. It would seem that what matters is not the self’s particular wishes or activities, but the integrity of its will or being. “We do not object to the drug user’s pleasure per se,” Jacques Derrida comments, “but to a pleasure taken in an experience without truth” [236]. Sedgwick, for her part, suggests that “so long as ‘free will’ has been hypostatized and charged with ethical value, for just so long has an equally hypostatized ‘compulsion’ had to be available as a counterstructure always internal to it, always requiring to be ejected from it” [133–34]. The thought of addiction thus spreads to the point of infecting the founding tropes of Western philosophy. The logos becomes hooked on itself: always already it becomes the pharmakon, the remedy that poisons.Yet as Derrida, Sedgwick, and many other critics have also pointed out, the notion of addiction is in certain crucial respects a nineteenth- and twentieth-century invention. Though inscribed within a sequence of representations of human agency that goes back to the Odyssey, the “addict” as such becomes possible only within a political and medico-social regime capable of rewriting identity as pathology. (Hence, in part, the persistent overlap between the addict and the “homosexual” in twentieth-century Western culture.) This is also to say that the addict emerges as part of the development of consumer capitalism, disciplinary society, and the modern state. Like the question of technology from which it is inseparable, the thought of addiction returns us to the West’s most ancient topics and texts only to confront us with some of the most prosaic, specific, and in certain cases disastrous characteristics of our own modernity. 1When addiction is at issue, in other words, metaphysical complications acquire empirical importance. Like “diction” or “dictation,” the term “addiction” derives from the Latin dicere (“say, relate”), which returns to the Greek deiknunai, “show, point out, bring to light”; in Roman law, however, the word addicere had the more prosaic job of signifying a giving or binding-over of something or someone by sentence of a court: the assignation of slave to master, debtor to creditor. The modern recasting of addiction as pathology has occurred as a massive institutional and sociohistorical articulation of [End Page 3] metaphysical values, tensions, and contradictions. In what Mark Seltzer has termed “machine culture,” the figure of the addict channels anxieties about the uncertain differences between machines and bodies; about the “nature” of technology; about the ways in which identities and desires get produced within a consumer economy that represents subjectivity both as inalienably natural and as compulsively iterative and artificial. In such contexts, as Seltzer shows, seemingly abstract paradoxes, such as the psychoanalytic notion of primal identification—where the subject forecloses and reiterates the act of mimesis that enables it to be (other than) itself—can no longer be dismissed as merely “theoretical” figures: they bleed irretrievably into sociohistorical reality. The subject is always already the addicted subject, ready at any moment to become the “addict”; the addict, in turn, becomes a (medical and juridical) “case” or case history only by becoming a frightening, alluring mirror image of the normative subject of consumer society.The discourse of addiction not only disciplines and deconstructs the subject of consumerism; as enacted in drug policies and politics, this discourse has violently reshaped the day-to-day operations of local governments and societies and left its mark on the global economies of the new world order. Hong Kong, the earliest drug spoil of the British Empire, may have returned to China, but the postcolonial world remains more hooked than ever on narcopolitics. From the vertically integrated cocaine... (shrink)

The complexity of the self-strengthening relationship between debts, money and manipulation is discussed. This ‘Trinity‘ has a significant impact on dehumanization of contemporary society. The ‘Trinity‘ also contributes to formation of dependency of individuals and groups to their creditors and to emergence of postmodern slavery.

Le point de départ de cet article est d'observer comment, en France, des organismes accordent des prêts aux chômeurs pour qu'ils créent leur entreprise. Ce qui est connu sous le nom de « microcrédit » dans les programmes de développement internationaux est qualifié de « finance solidaire » en France. Dans ce cas aussi, les créanciers ne visent pas le profit. Le crédit n'est pas qu'un outil économique mais le support de liens de solidarité. Cependant la finance solidaire ne peut (...) se résumer à un moyen de lutte contre le chômage. Un grand nombre d'organismes de ce secteur ont un projet politique sous-jacent qui consiste à replacer l'homme au coeur de l'économie.The starting point of this article is to watch how, in France, some organizations give loans to unemployed people to help them create their enterprise. What is called « microcredit » in international development programs is known in France as « financial solidarity ». In this case also, creditors are not looking for benefits. With this point of view, credit isn't only an economic tool but also a medium of solidarity. But financial solidarity insn't only a tool to struggle against unemployment. A lot of organizations of this sector are trying to implement the political idea that people are in the heart of economy. (shrink)

In order to clarify the objectives of bankruptcy, to reveal the true essence of bankruptcy procedure and the origin of legal terms, it is necessary to ascertain the nature of this institute of law, as well as the reasons for its creation and development. This article provides historic analysis of the development of the institute of bankruptcy procedure. For this purpose, a historic comparative research is undertaken in the article, in order to find certain parallels of bankruptcy procedure under Roman (...) law and the modern bankruptcy procedure. Roman law has been chosen as the most phenomenal ancient law for the purposes of undertaking a historic analysis of the development of bankruptcy procedure. In the authors’ opinion, it it the best example that reveals the origin of bankruptcy procedure, and the reasons for its formation. Analysis of certain private law institutes of Roman law enables the authors to conclude that the main features (principles) of the bankruptcy procedure formed precisely under Roman law: replacement of personal liability by pecuniary; public auction as a form of realization of debtor’s property; transition from selling of debtor’s property as a whole to disposal of property in divided property units; creation of subject, who administers auctions of debtor’s property under oath not to act in selfish purposes; setting of a term of 30 days, during which a debtor has to cover the debts (claims’ dispute resolution); establishment of the institute of informing creditors about initiated procedures of debt retrieval and encouragement to join these procedures; establishment of the ban to recover debts from household items; laying of the foundations of the institute of peace agreement between the debtor and his creditors; establishment of actio Pauliana - a remedy for the protection of creditors rights. The mentioned rules in one way or another eventually have been transferred to legal acts on legal relations in case of bankruptcy of many foreign countries. (shrink)

Starting from the premise that the financial regime has become a power in and of itself—a fourth, ‘monetative’ power as it were—this essay gives an account of the ascendancy of finance and the shift from geopolitical to geo-economical order, within which there is no democratic legitimacy and no legal accountability and within which a new class conflict also emerges. It goes on to advance five theses on this new financial sovereignty, concluding that sovereign is he, who can transform his risks (...) into other’s dangers and position him-self as the creditor of last resort. (shrink)

Through empirical investigation of the Eurozone and Greek debt crisis 2010–12, this article demonstrates how a peak organization of financial firms—the Institute of International Finance —was able to mobilize its members transnationally to secure several key political and economic objectives. At the height of the crisis, large European banking firms were threatened by the prospect of a disorderly Greek default, coercive intervention by governments, and, potentially, a regional banking collapse. In this context, representatives from the IIF entered the policymaking process (...) to facilitate concerted private sector action, assisting EU officials with the negotiation of a substantial and orderly creditor writedown, and cooperating with legal action by the Greek government to sideline a minority of financial firms hostile to the deal. The article shows that the IIF’s disproportionate influence over policymaking was a result of their technical expertise, their ability to recruit individuals with long-standing experience of sovereign debt restructuring from the public and private sector, and the operation of elite revolving-door processes. In contrast to recent studies showing that financial actors are able to exercise more power at the national level by remaining collectively inactive, these findings suggest that, at the transnational level, financial actors can be most effective at securing their preferences when they are well organized and when they coordinate politically on the basis of collective interests. (shrink)

Should the foreign debt of the world’s poorest countries be cancelled? In this essay, I am concerned with whether a generational perspective makes a difference in answering this question. I will show that it does, and that alternative accounts of repayment obligations are possible. I argue that a distributive theory of justice is not only appropriate to address the challenges to justice raised by long-term sovereign indebtedness, but that it is also superior to the solution offered by the odious debt (...) doctrine.Unlike the odious debt doctrine, a distributive view is capable of taking intoaccount the separateness of generations. More specifically, I also argue thatthe need to preserve creditors’ incentives to lend to the poor in order toensure that the latter keep having access to credit for important development purposes requires the adoption of a narrow, problem-specific view, which focuses on the distributive impact of the loan transaction, rather than a broad distributive view, which looks at the general distributive situation of the two descendent communities. (shrink)

This paper evaluates the economic assumptions of economic theory via an examination of the capitalist transformation of creditor–debtor relations in the 18th century. This transformation enabled masses of people to obtain credit without moral opprobrium or social subordination. Classical 18th century economics had the ethical concepts to appreciate these facts. Ironically, contemporary economic theory cannot. I trace this fault to its abstract representations of freedom, efficiency, and markets. The virtues of capitalism lie in the concrete social relations and social meanings (...) through which capital and commodities are exchanged. Contrary to laissez faire capitalism, the conditions for sustaining these concrete capitalist formations require limits on freedom of contract and the scope of private property rights. (shrink)

Adopting a comparative UK/US approach, this article argues for the need to rethink corporate bankruptcy theory in the light of developments in the finance market. It argues that these developments have produced an effective mechanism, in large cases, for selecting between companies which will be worth more if they continue to trade and companies which ought to be allowed to fail, so that corporate bankruptcy law need no longer concern itself with steering creditor choice away from a sale of the (...) business and assets and towards a restructuring. Moreover, it suggests that whilst the automatic stay remains a central tenet of corporate bankruptcy law where the market decides that the business and assets should be sold, in cases where the market sees more value if a company continues to trade, corporate bankruptcy law may operate very well without a stay as a resolution procedure for deadlocked negotiations. The article identifies that in many large restructuring cases the only liabilities that are implicated are financial liabilities, and queries the extent to which the distributional concerns of the progressive movement, and US federal bankruptcy law, apply where losses are shared amongst sophisticated financial institutions. It ends with an explanation of why the analysis is limited to large cases, an indication of areas for further research and a note of caution for the future. (shrink)

In the past decade, the use of the Chapter XI has soared to the detriment of many creditors, workers, and consumers. A good number of cases were not based on imminent insolvency, but on firms attempts to avoid litigation claims against them, to terminate labor or other contractual obligations, or to gain new financing.These filings for Chapter XI highlight the use of bank-ruptcy as a strategic option used by management in running a viable organization. This usage is even advised (...) by some academics and management consultants. (shrink)

This paper addresses the possibilities to introduce the stakeholder model in the firm, especially the possibility to give property or decision rights to stakeholders. This paper argues that it is not practical to give full property rights to more than one group of stakeholders. Decision rights to employees and creditors are already in place in some countries, but the possibility to introduce them more generally to other stakeholder groups depends very much on the governance and ownership structure of the (...) firm and the legal environment. The future of the stakeholder model in a globalised economy is also analysed. (shrink)

When can we say that a debt crisis has been resolved fairly? An often overlooked but very important effect of financial crises and the debts that often engender them is that they can lead the crisis countries to increased dependence on international institutions and the policy conditionality they require in return for their continued support, limiting their capabilities and those of their citizens to exercise meaningful control over their policies and institutions. These outcomes have been viewed by many not merely (...) as extremely unfortunate and regrettable, but also as deeply unfair. And indeed, increasingly potent popular movements have pressured governments, financial institutions, and the financial community to seek what they take to be fairer solutions to debt crises. The merits of these programs and proposals for dealing more fairly with sovereign debt remain hotly disputed. In this essay, we try to take a step back from the political fray and examine some more fundamental considerations that seem relevant to assessing the fairness of current arrangements governing economic exchanges related to debt contracts and alternatives that have been proposed to them.Our discussion is organized into seven sections. First, we characterize briefly the concept of fairness and its role in social evaluation. Second, we clarify what sovereign debt is, and, third, the ethical statuses that particular sovereign debts can have. Fourth, we identify and describe the main features of current practices related to sovereign debt. Fifth, we describe an "ideal picture" of creditor/debtor relations. We argue that in such a scenario a broad range of ethical considerations can plausibly be invoked in support of practices that closely resemble those presently governing sovereign debt. Sixth, we draw attention to the many ways in which in reality the relations between sovereign debtors and their creditors differ markedly from the relationships between the creditor and debtor in the ideal picture. Because of this, many of the ethical considerations that would support present practices were relations between sovereign debtors and their creditors to resemble more closely those depicted in the ideal picture fail to do so under present circumstances. We conclude, moreover, that the remaining ethical considerations that might be advanced in support of the present system are at best quite inconclusive. Finally, we describe briefly specific reform proposals to current practices. While we will not attempt to show that these proposals would necessarily make the rules governing economic exchanges relevant to sovereign debt more fair, we conclude, in light of our earlier analysis, that they must be given much more serious consideration than they have so far received in policy circles. Indeed, there are strong prima facie reasons to believe that some combination of these proposed policies might prevent or mitigate some of the most ethically regrettable outcomes of present practices and norms by changing the incentives of sovereign borrowers and those who lend to them. (shrink)

The spectacular corporate scandals and bankruptcies of the past decade have served as a powerful reminder of the risks that are involved in the ownership of enterprise. Unlike other patrons of the firm, owners are residual claimants on its earnings.1 As a result, they have no explicit contract to protect their interests, but rely instead upon formal control of the decision-making apparatus of the firm in order to ensure that their interests are properly respected by managers. In a standard business (...) corporation, it is the shareholders who stand in this relationship to the firm. Yet as the recent wave of corporate scandals has demonstrated once again, it can be extraordinarily difficult for shareholders to exercise effective control of management, or more generally, for the firm to achieve the appropriate alignment of interests between managers and owners. After all, it is shareholders who were the ones most hurt by the scandals at Enron, Tyco, Worldcom, Parmalat, Hollinger, and elsewhere. For every employee at Enron who lost a job, shareholders lost at least US$4 million.2 Furthermore, employees escaped with their human capital largely intact. Creditors and suppliers continue to pick over the bones of the corporation.3 But as far as shareholders are concerned, their investments have simply evaporated, beyond any realistic hope of retrieval. (shrink)

As an intellectual, economic, political and legal project, neoliberalism is not directed towards the rolling back of the state as an aim in itself. While its deregulatory tendencies, its commodification of public services and the undermining of systems of social welfare superficially suggest a generalised reduction in state power, it has been clear from the early 1980s that one of neoliberalism’s primary concerns has been the authoritarian reshaping of state power to engineer particular social outcomes, whether in criminal justice, the (...) disciplining of organised labour, the militarisation of national territory and migration, or the extension and deepening of regimes of austerity. This article introduces the recent work of Maurizio Lazzarato, who has argued that the asymmetrical creditor-debtor relationship is now the archetype of contemporary, neoliberal social relations. Ultimately, Lazzarato’s perspective tends to exaggerate the totalising powers of finance capital and leads him to endorse a form of political voluntarism, which fails to address the role of the neoliberal state as a site for forms of authoritarianism which are not solely generated by the debt relation. As a response, it will be suggested that aspects of Nicos Poulantzas’s concept of ‘authoritarian statism’ can be used to both strengthen our understanding of the authoritarian characteristics of the neoliberal state, and to imagine possibilities for resisting its expressions of power. (shrink)