According to a well-established interpretive line, the Benthamic judge would be allowed no room for autonomous calculations of utility and his or her task would only be that of mechanically applying substantive law, which expresses the legislator's will. For Gerald Postema, in contrast, Bentham's judge would be granted ample power to decide cases by directly applying the principle of utility. This article criticizes both views, by showing that a adjudication was for Bentham utterly impossible, although this does not mean that (...) judges should be free to decide according to direct utility calculations. Judges must be the tutors of the citizens’ expectations, which, under a system of statute law, will focus on the code. However, they can avoid suboptimality in cases where applying a general rule would not maximize utility, without preponderant damage for law-induced expectations: Bentham's suggestion is that they do so by proposing amendments of the code to the legislature. (shrink)

Central to the legal positivism of the nineteenth and the first half of the twentieth century was the dogma of the Ideal Legislator. Legal materials were to be interpreted as the work of an omniscient, coherent, consistent legislator. We argue that this dogma persists in the different guise of the competent speaker model, on which legal materials are the work of a competent speaker, who follows all the pertinent semantic and pragmatic rules. We will first lay out the Ideal Legislator (...) dogma as applied in legal interpretation, arguing that this dogma does not limit interpretive discretion but rather amplifies it by hiding it under the veil of an inexistent, purely instrumental rationality. We will then turn to the competent speaker model, showing that, despite its apparent neutrality, it proves to be a reincarnation of the Ideal Legislator dogma, for it, too, amplifies interpretive discretion, only it hides it under the veil of an inexistent, purely linguistic rationality. Finally, we will inquire into the different types of rationality and their relations, arguing that there is always a choice and value judgment involved in ascribing rationality to legislators, and that these choices and judgments need to be carefully inspected and normatively justified. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 38-54, March 2022.

How is the tension between conflict and deliberation resolved in shareholder engagement? We address this question by studying shareholder engagement as a deliberative process with three stages: establishing dialogue, solution development, and solution implementation. We theorize that two interactionist mechanisms, deliberative interaction and the voicing of disagreement, play different roles at different stages of the process. We test our hypotheses with a proprietary database of 169 environmental, social, and governance engagements with US public companies over 2007–12. We find that while (...) deliberative interaction does not help advance the engagement process, it positively moderates the effect of disagreement in the solution development stage. By contrast, in the solution implementation stage, deliberative interaction amplifies the negative effect of disagreement, thus hindering progress in the engagement. Our article contributes to shareholder engagement, deliberation theory, and interactionist organization theory by establishing that engagement effectiveness is an interactional achievement shaped by both deliberation and disagreement. (shrink)

Following the XVIII century Declarations, rights have progressively occupied the whole space of legal, political and moral debate; with the UN’s Declaration of Human Rights, the language of rights has been established as a universal ground for expressing human needs and claims, despite allegations of Western ethnocentrism. Rights are an indispensable tool for expressing the value of human dignity, because they allow right-holders to claim certain actions as due to them: they endow the individuals with a moral authority, the absence (...) of which would dramatically impoverish moral discourse. However, 1) the abuse and uncontrolled proliferation of rights talk threatens such language with inflation. Moreover, 2) not all plausible moral concerns can be expressed in terms of rights, since rights presuppose an individualist anthropology and are particularly well-suited to situations in which individuals can be seen as both independent and equal: in situations where individuals depend on others and have little or no power of negotiation, values like respect and dignity cannot be adequately expressed by rights language. Finally, 3) if we reduce all moral discourse to rights talk, we are unable to ascribe the due importance to values like autonomy, which presuppose collective goods. A reasonable use of rights language would avoid such shortcomings, although this seems to conflict with the basic tenets of some so-called “right-based” ethical theories. (shrink)

This study assessed the validity of instrument including various negative psychological and physical behaviors of commuters due to the public transport delay. Instruments have been mostly evaluated by parametric method of item response theory. However, the IRT has been characterized by some restrictive assumptions about the data, focusing on detailed model fit evaluation. The Mokken scale analysis, as a scaling procedure is a non-parametric method, which does not require adherence to any distribution. The results of the study show that in (...) most regards, our instrument meets the minimum requirements highlighted by the MSA. However, the instrument did not adhere to the minimum requirements of the “scalability” for two variables including “stomach pain” and “increased heart rate”. So, modifications were proposed to address the violations. Although MSA technique has been used frequently in other fields, this is one of the earliest studies to implement the technique in the context of transport psychology. (shrink)

“Nudging” is commonly seen as an appealing form of “Smart legislation” based on the findings of Behavioural sciences and alternative to traditional forms of regulation. However, notwithstanding the ever increasing references and a growing body of literature on its acceptability, a proper definition of the concept seems still lacking, since all the attempts to date have only provided over- or under-inclusive definitions. This chapter purports to offer a more plausible definition. Firstly, the received view and especially Thaler’s and Sunstein’s descriptions (...) of nudging will be examined and subjected to a first critical assessment. Secondly, a few examples will be made of policies enacted all around the world which are usually referred to as cases of nudging. Thirdly, some of the elements which have often been associated to nudging as its definitional features will be tested against the set of examples: such test will show that most of those elements must be done away with. Lastly, a “minimal” definition will be offered. While allowing us to distinguish nudging from other forms of conduct-influencing interventions, the minimal definition will exclude many features as its necessary conditions: among others, those related to specific ends and political ideologies. (shrink)