The development of electronic agents that increasingly play an active role in the contract formation and execution process has highlighted the need for the creation of law-abiding autonomous agent systems. The principle of good faith is an important guideline for contractual behaviour which permeates civil law systems. This paper examines how this principle is applied both during the negotiation of a contract and during its performance. Selected examples from civil law literature of precontractual duties of good (...) class='Hi'>faith, and of precontractual behaviour that is deemed to be contrary to good faith, are discussed. This is followed by a discussion of the extent to which such duties are recognised, or such behaviour proscribed, in common law jurisdictions. Some common standards for precontractual behaviour in civil and common law systems are identified. There is then a parallel analysis of the principle of good faith in contract performance with a view to identifying common traits or standards between civil and common law systems. These standards, in the situation where contracts are being negotiated and/or performed by or through electronic agents, would need to be reflected in the way such agents operate. (shrink)

The use of deception and dishonesty is widely accepted as a fact of life in policing. This paper thus defends a counterintuitive claim: Good faith is a normative foundation for the police as a political institution. Good faith is a core value of contracts, and policing is contractual in nature both broadly (as a matter of social contract theory) and narrowly (in regard to concrete encounters between law enforcement officers and the public). Given the centrality of (...) good faith to policing, dishonesty and deception on par with fraud are justified only as a narrowly circumscribed investigative tool that is constrained by institutional commitments to the fair distribution of security and the rule of law. The practical upshot is the preclusion of most dishonest and deceptive police tactics on par with fraud, leading to an institution that is less proactive and more reactive. (shrink)

This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative (...) space and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law. (shrink)

Although stakeholder theory is concerned with stakeholder engagement, substantive operational barometers of engagement are lacking in the literature. This theoretical paper attempts to strengthen the accountability aspect of normative stakeholder theory with a more robust notion of stakeholder engagement derived from the concept of good faith. Specifically, it draws from the labor relations field to argue that altered power dynamics are essential underpinnings of a viable stakeholder engagement mechanism. After describing the tenets of substantive engagement, the paper draws (...) from the labor relations and commercial law literatures to describe the characteristics of good faith as dialogue, negotiation, transparency, and totality of conduct; explains how they can be adapted and applied to the stakeholder context; and suggests the use of mediation and non-binding arbitration. The paper concludes by addressing anticipated objections and shortcomings and discussing implications for theory and research. (shrink)

This book offers an original theory of adjudication focused on the ethics of judging in courts of law, and proposes two main theses. One is the good faith thesis, which defends the possibility of lawful judicial decisions even when judges exercise discretion. The other is the permissible discretion thesis, which defends the compatibility of judicial discretion and legal indeterminacy with the legitimacy of adjudication in a constitutional democracy. Together these two theses oppose both conservative theories that would restrict (...) the scope of adjudication unduly, and leftist critical theories that would liberate judges from the rule of law. (shrink)

Under Directive 86/653/EEC on the co-ordination of the laws of European Union Member States relating to self-employed commercial agents, commercial agents have an obligation to act ‘dutifully and in good faith’. This article considers the impact that this general good faith clause has had upon the UK legal order. It first analyses the Obligation, assessing its scope, function and content. It then reviews the choices made by the UK legislature in implementing this duty and scrutinises the (...) manner in which it has been construed and applied by UK courts, as well as commentators. Finally, it charts the areas of the pre-existing common law agency rules that are affected by this imported notion and appraises the resulting alterations to the positive law. (shrink)

The vast majority of Biblical historians believe there is evidence sufficient to place Jesus’ existence beyond reasonable doubt. Many believe the New Testamentdocuments alone suffice firmly to establish Jesus as an actual, historical figure. I question these views. In particular, I argue (i) that the three most popular criteria by which various non-miraculous New Testament claims made about Jesus are supposedly corroborated are not sufficient, either singly or jointly, to place his existence beyond reasonable doubt, and (ii) that a prima (...) facie plausible principle concerning how evidence should be assessed—a principle I call the contamination principle—entails that, given the large proportion of uncorroborated miracle claims made about Jesus in the New Testament documents, we should, in the absence of good independent evidence for an historical Jesus, remain sceptical about his existence. (shrink)

The widespread confusion of Nature with God and "natural" with holy has far-reaching negative consequences, from misinformation about everyday food and health choices to mistaken justifications of sexism, racism, and flawed economic policies.

In September 2020, relationships and sex education (RSE) became compulsory in all English secondary schools, and relationships education became compulsory in all English primary schools, marking a significant step forward in the fight to establish children's rights. Although the new RSE regime will help to ensure that many English schools provide pupils with a far more comprehensive RSE curriculum than ever before, the statutory guidance underpinning it includes a number of caveats that mean, although the subject is compulsory, not all (...) children will receive the same content. Arguably, along with the right to withdraw (which is often exercised on religious grounds), the most insidious of these ‘carve-outs’ allows faith schools to teach RSE according to their ‘distinctive religious character’. This exemption has been used to defend the use of religious RSE resources that critics maintain are misogynistic, homophobic and often draw heavily on pseudoscience, as well as to justify leaving certain topics (such as same-sex relationships or trans rights) out of classroom discussion altogether. Drawing on empirically informed normative case studies and recent reforms to the curriculum in Wales, I argue that faith-based carve-outs to RSE policy imperil children's access to a distinct package of educational goods. Using a recent framework for educational decision-making based on these goods developed by Brighouse et al. I go on to conclude that such policies are politically and morally unjustifiable (at least if one agrees that the relevant package of goods is desirable). I further maintain that, even when considered from the perspective of human rights law—which is often given as a pragmatic reason to allow more permissive policies with respect to teaching topics that may impinge upon parents’ deeply held convictions—there are no necessary grounds for governments to legislate for the subject to be circumscribed by the religious beliefs of parents or the faith ethos of the schools children attend. (shrink)

The church in legal history: The idea of universality. The idea of authority. The idea of good faith. The idea of law. By R. Pound.--The function of law in society today: The future of the common law, by D. J. Lyne. Law and civil liberty, by G. Clark. Natural law and positive law, by H. D. Castro. Law and ethics, by J. J. Burns.

ABSTRACTThis article critically examines the practice and ethical underpinnings of Collaborative Law, one of the newest processes in the ADR suite of options available to parties in dispute. CL has been described as mediation without the mediator. The parties and their lawyers agree to negotiate in good faith and in a cooperative non-adversarial manner without the assistance of a mediator. However, controversially, they also agree that if settlement is not reached, the lawyers are to withdraw and be disqualified (...) from representing the parties in any subsequent litigation. The parties must engage new lawyers and often new expert witnesses if they wish to proceed with litigation. In this article, the author highlights the potential for CL lawyers to exert undue pressure on their clients as the goal of settlement is given priority over the interests of the clients. The article describes the main features of CL, its contractual supports, its potential benefits and the potential for its abuse. (shrink)

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

Tolerance has its arguments, both in morality and in law. It also has its sources, not only in the sense of the origins from which it springs, but also in the sense of that which actuates it and gives it life, that which encourages it and sanctions it - profoundly. Religions take part of these sources, but also take part of this reflexive aspect of ethics that puts into play the final legitimation, the ultimate justification of the norms of our (...) public and private actions. It is with respect to this recourse to the ultimate that religion and ethics intersect without becoming one. Yet it is also in this recourse to the ultimate that one and the other greatly face the danger of temptation. This is particularly the case with religion. It is indeed not enough to simply say that it is the political use of religion that is to blame, and not religion as such, in the long and unfinished history of religious intolerance. We must trace the source of the temptation of intolerance to the very heart of the certainty of religious faith. Any belief, as soon as it defines itself in relation - a relation of any kind, whether of distance or proximity, of alterity or fusion - to an absolute, must be on guard against its own penchant for intolerance. It is not enough, in an opposite sense of the preceding warning, to rely on the critical resources borrowed from sources outside of religion: it is at that same heart of certainty of all religious faith that we must seek the reason for the conviction that it is unjust to look to impose on adherents of other religions, on agnostics and atheists, the truth as it is admitted in good faith by the community of believers of one or another religious confession. (shrink)

This article, prompted by Heidi Crowter’s campaign to eliminate the discriminatory aspects of current abortion law, outlines the challenges to good governance in a context of bioethical plurality. First, the nature of the plurality is sketched. Secondly, some reflections are presented on how those who have governance responsibilities might ease the tensions engendered by the plurality; and, at the same time, how the discontented governed might reasonably press their views. Thirdly, a model of good governance (demanding integrity by (...) those who govern and respect for the global commons) is introduced. The conclusion is that good faith governance merits our respect, but it does not guarantee particular outcomes or positions that will meet with the approval of all bioethical constituencies or individuals. Accordingly, we have to learn not only to live with rocks and hard places but also to find civilized ways of debating our differences. (shrink)

This book examines the most controversial issues concerning the use of pre-drafted clauses in fine print, which are usually included in consumer contracts and presented to consumers on a take-it-or-leave-it basis. By applying a multi-disciplinary approach that combines consumer's psychology and seller's drafting power in the logic of efficiency and good faith, the book provides a fresh and unconventional analysis of the existing literature, both theoretical and empirical. Moving from the unconscionability doctrine, it criticizes (and in some cases (...) refutes) its main conclusions based on criteria which are usually invoked to sustain the need for public intervention to protect consumers, and specifically related to Law (contract complexity), Psychology (consumer lack of sophistication criterion) and Economics (market structure criterion). It also analyzes the effects of different regulations, such as banning vexatious clauses or mandating disclosure clauses, showing that none of them protect consumers, but in fact prove to be harmful when consumers are more vulnerable, that is whenever sellers can exploit some degree of market power. In closing, the book combines these disparate aspects, arguing that the solution (if any) to the problem of consumer exploitation and market inefficiency associated with the use of contracts of adhesion in these contexts cannot be found in removing or prohibiting hidden clauses, but instead has to take into account the effects of these clauses on the contract as a whole. (shrink)

Members of a National Health Service, or other recognised Research Ethics Committee, in deciding whether or not to withhold their assent for a clinical trial, must obey the law. If they do not do so, then they may become liable to pay personally negligence claims made by injured trials subjects. It could be no defence to say that members had consulted their own lower ethical standards; or merely that they had acted in good faith; or that they had (...) followed Department of Health guidelines, which do not have the force of law. The law requires that the rights, safety, and well-being of clinical trial subjects shall prevail over other interests. REC favourable opinion is a powerful endorsement of a trial, and prospective subjects are invited to rely upon it. REC members are legally bound to exercise their power to withhold assent to any clinical trial which does not give subjects the protection the law requires. (shrink)

This article deals with some phenomena of the Hungarian legal language from a historical point of view, with special regard to the terminology of private law going back to Roman law tradition. The author aims, on the one hand, to present the historical background of the current terminology of Hungarian private law by means of some representative examples. On the other hand, it is attempted at demonstrating that “false friends” and some further misunderstandings in the current terminology of Hungarian private (...) law can be led back to the historical determination of the concepts/terms in question. A certain Hungarian legal language existed already in the 16th c., however it reached the common European level by the middle of the 19th c. This development took place mainly under the influence of the Austrian and German law and legal science. Due to the translation of foreign legal terms to Hungarian since the 19th c. there emerged some “global” difficulties of legal terminology also in the Hungarian legal language. As the most important example, the reception of bona fides can be mentioned. It was an amendment of the Hungarian Civil Code in 2006 which tried to eliminate the misunderstandings as regards the principle of good faith conceived formerly by many Hungarian jurists exclusively in subjective sense. The history of reception of the German notions of Gültigkeit and Wirksamkeit in Hungary is extremely intriguing, too. Hungarian jurists did not follow the pattern of the German BGB but developed this pair created by Windscheid by drawing a clear distinction between the validity and effectiveness of legal transactions, similar to the Italian terminology. Sometimes the reception of German notions happened in a less successful way. Despite the important foreign, especially German impacts, the Hungarian legal language is an autonomous one having several remarkable features which deserve attention also in comparison with terminology of the Western legal cultures. (shrink)

God is good : the harmony between Judaism and enlightenment philosophy -- Philosophy and law : shaping Judaism for the modern world -- Either/or : Jacobi's attack on the moderate enlightenment -- Enlightenment reoriented : Mendelssohn's pragmatic religious idealism.

Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly violating regulations with the aim of rendering them dead letters. This article argues that in a democracy, regulatory entrepreneurship is a presumptively unethical business strategy. In all but the most corrupt political environments, businesses that seek to change their regulatory environment should do so through the democratic political process, and they should do so without using illegal business practices to build a political constituency. To show this, the article (...) defends a qualified moral obligation for businesspeople to obey the law even in societies that fall short of ideal democracy and that are rife with economic injustice. Owners and managers of successful businesses have strong moral reasons to obey laws concerning resource allocation. Such laws include not only property law, but also tax laws, environmental regulations, and other laws that regulate businesses in competitive markets. The moral reasons to obey such laws apply even to laws that business leaders think unfair or inefficient, provided that the laws in question have reasonable, good faith defenders. (shrink)

With the growth of Muslim economies, both at the national and international levels, the issue of riba (interest, usury) poses great difficulties. The charging or receiving of riba has been forbidden in Islam, which presents a major problem to financial institutions that charge interest. Muslim legal scholars belonging to all schools of legal thought have reinterpreted scriptural sources to accommodate drastic economic changes; practical considerations have forced Muslim groups, both of Sunni and Shi'ite persuasion, to justify interest-based banking and other (...) institutions of finance. As a matter of religion, the status of interest is far from resolved. However, within the legal tradition, there are ethical principles like maslahah (public good) and la darar wa la dirar (no harm, no harassment) that will determine the future direction of a Muslim search for a morally responsible economy. (shrink)

After the French Revolution, the codification movement led to the introduction of the Dutch Civil Code and the Commercial Code of 1838. These codifications were generally regarded as the bedrock of a dogmatic system in which little space was left for customs and customary law. Mercantile jurists, such as Holtius and Levy, were opponents of the legalistic approach of the new codifications. They tried to separate mercantile law from civil law in order to protect mercantile law from excessive legalistic influences. (...) According to them, mercantile law was characterised by internationality, custom as its main source of law, continuity through an extended mercantile legal history and by good faith and mutual trust between the merchants. Out of these, the historicity and homogeneity of a strong community of merchants are particularly in line with a traditional and conservative view on society. Holtius and Levy, however, had little in common with their Christian-conservative contemporaries. On the one hand, they rather seemed to foreshadow the kind of liberal-conservatism as expressed by Hayek during the 20th century. On the other hand, their ideas have much in common with different lex mercatoria –traditions developed by authors as Goldman and Schmitthoff. On the aspects of historicity and internationality Holtius and Levy seem to have much in common with Hayek whereas concerning communality and the legal nature of customary law there are more similarities with the lex mercatoria-traditions. (shrink)

Over the last three decades, the art market has undergone a remarkable transformation. Before the 1990s, artworks were sold with hardly any concern about whether they had been stolen or looted, whereas now any reputable gallery or auction house checks the “provenance” of any substantial work before sale. This transformation reflects interlocking changes in law, norms, and institutions. New York’s and more broadly the United States’ assertion of jurisdiction and application of U.S. substantive law has destabilized title to stolen and (...) looted goods worldwide because American statutes of limitations generally provide weaker protection for those who possess stolen or looted goods even in good faith. Application of American law has had a profound effect, especially for the high end of the market, because European or Asian investors who purchase art outside of the U.S. may eventually want to sell or display their works in the U.S. Defective title under American law thus affects prices worldwide. The tightening and broader application of American law reflects both longstanding legal principles and changes in social norms towards the redress of historical wrongs, most notably prominent campaigns relating to art confiscated or sold under duress in Nazi Germany. New institutions, most importantly searchable databases recording stolen and looted art such as the Art Loss Register, are also changing perceptions about minimum standards for good faith purchase, which in turn affects both social norms and court cases. These new norms, induced by both legal changes and better information, have influenced the market even for less valuable art, for which sale or display in the U.S. is not a relevant consideration and for which the threat of costly legal action is not credible. The fact that social and institutionalized norms play an important role in protecting original owners is probably good, because norms and institutions can be effective even where law is not and often do so at lower cost. (shrink)

This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been (...) proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided. (shrink)

Contract law doctrines can be ranged along various spectra. One of these spectra runs from the static to the dynamic. A contract law doctrine lies at the static pole of this spectrum if its application turns entirely on what occurred at the moment in time when a contract was formed. A contract law doctrine lies at the dynamic pole if its application turns in significant part on a moving stream of events that precede, follow, or constitute the formation of a (...) contract. Another spectrum runs from the binary to the multifaceted. Contract law doctrines are binary if they organize the experience within their scope into only two categories. Contract law doctrines are multifaceted if they organize the experience within their scope into several categories, including one or more intermediate categories. Classical contract law was a rigid, rather than a supple, instrument. Its rules were often responsive to neither the actual objectives of the parties, the actual facts and circumstances of the partiesâ transaction, nor the dynamic character of contracts. Instead, the rules of classical contract law were centered on a single moment in time, the moment of contract formation. accordingly, classical contract law doctrines were almost wholly static and also tended to be binary. The twentieth century witnessed the development of a modern contract law that has largely overthrown classical contract law. This overthrow has occurred in two ways. To begin with, in many cases modern contract law has reversed or fundamentally modified the rules of classical contract law. More important than the overthrow of specific rules of classical contract law, however, has been the overthrow of the deep structure of classical contract law. Where classical contract law had an overriding preference for rules that were objective and standardized, modern contract law has been highly flexible in adopting rules that are individualized and even subjective. Where classical contract law rules were typically binary, modern contract law rules are often multifaceted. Finally, where classical contract law was largely static, modern contact law is, in large part, dynamic. So, for example, static rules of interpretation have been replaced by dynamic rules that take into account events before and after the moment of contract formation; the static legal-duty rule has withered almost completely away, to be largely replaced by a dynamic modification regime that takes into account the value of ongoing reciprocity; a static judicial review of liquidated damages provisions is giving way to a dynamic review that takes account of the actual loss; and static offer-and-acceptance rules have been replaced by dynamic rules, such as the duty to negotiate in good faith. (shrink)

This article aims to analyze the views of two pioneering Ḥanafī scholars, Abū Manṣūr al- Māturīdī and Abū Zayd al-Dabūsī, on the meaning of death and life in terms of their general doctrine of religion. In the first part, the general framework of Māturīdī and Dabūsī’s evidentialist conception of religion are drawn. In the second part, Māturīdī's views on the meaning of death and life and are explored. In the third part, the views of Abū Zayd al-Dabūsī on the meaning (...) of death and life, who establishes a striking connection between the divine order and existence, divine prohibition and non-existence, are examined, and a general evaluation is offered in the last section. Al-Māturīdī proposed a very original and systematic example of doing philosophy of religion, which still promising for the modern problems of the field, by opening the phenomenon of religion itself to discussion, and analyzing the nature and elements of religion. Māturīdī aims to place the problems on a universal and theoretical basis and to present a holistic, metaphysical understanding while discussing specific and particular issues in religion. Just as there are main notes in classical Western music that repeat throughout the symphony in baroque style, there are universal principles in al-Māturīdī’s metaphysics that cut all particular debates vertically. The basic principle of the al-Māturīdī’s metaphysics is based on this idea: God is a wise being, he does not do anything wise. Accordingly, it is absurd to create something to destroy; God did not create man to perish. The love of life and the fear of death are the deepest existential problems facing man as a finite being that goes towards death. Religion can be regarded as a powerful alternative to other worldviews to the extent that it provides a reasonable explanation for man’s deep concern about finitude. For al-Māturīdī, neither pessimistic understandings that emphasize only the fear of death nor hedonistic understandings that ignore death offer a reasonable solution. God created death as something that people fear the most and avoid, and life as something they love and desire. The testing of man is about being between the fear of death and the desire to live in the world. According to al-Māturīdī, this dilemma that man is facing also shows him the way out. If people do good and useful deeds because of their love for life, and avoid nonsense and ugly deeds because of their afraid of death, they can make their life eternal with their own efforts and escape from eternal/permanent death. The other Hanafī thinker, a philosopher of law Abū Zayd al-Dabūsī’s views on the meaning of death and life are parallel to Māturīdī's. According to al-Dabūsī, to test man, what God has placed in human nature is not only the soul and reason but also the spirit (al-nafs) and whim (al-hawa). While the spirit and whim invites man to the temporary by ignorance, it calls the soul and reason to the permanent by knowledge. The test for human beings is to choose between the temporary and the eternal life. For al-Dabūsī, man’s saving himself from falling into nothingness and gaining the eternal life depends on his use of reason. In other words, the reason binds human beings to life, and the whim leads them to nothingness. Drawing a parallel between reasoning and existence, ignorance and absence, Dabūsī defines the terms divine command and divine prohibition in a very original way. For him, the divine command is the things that must exist, and the divine prohibition is the things that must not exist. If the man helps exist the things that God wills to exist, he can make his own existence eternal. If the man helps exist the things that God does not will to exist, he puts himself into nothingness. Lastly, both for al-Māturīdī and al-Dabūsī, life is a divine grace bestowed on human being to gain eternal life through the good deeds he does at any moment. In short, reason is necessary in religion because its use is a preference of existence to non-existence. This metaphysical system, which sees goodness as a bridge from this finite world to heaven and eternity and makes a connection between faith and deeds on the ontological and ethical level is the essence of the worldview of the Hanafī-Māturīdī tradition. (shrink)

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique (...) these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents. (shrink)

Aquinas, Aristotle, and the Promise of the Common Good, first published in 2006, claims that contemporary theory and practice have much to gain from engaging Aquinas's normative concept of the common good and his way of reconciling religion, philosophy, and politics. Examining the relationship between personal and common goods, and the relation of virtue and law to both, Mary M. Keys shows why Aquinas should be read in addition to Aristotle on these perennial questions. She focuses on Aquinas's (...) Commentaries as mediating statements between Aristotle's Nicomachean Ethics and Politics and Aquinas's own Summa Theologiae, showing how this serves as the missing link for grasping Aquinas's understanding of Aristotle's thought. Keys argues provocatively that Aquinas's Christian faith opens up new panoramas and possibilities for philosophical inquiry and insights into ethics and politics. Her book shows how religious faith can assist sound philosophical inquiry into the foundation and proper purposes of society and politics. (shrink)

The BankXX system models the process of perusing and gathering information for argument as a heuristic best-first search for relevant cases, theories, and other domain-specific information. As BankXX searches its heterogeneous and highly interconnected network of domain knowledge, information is incrementally analyzed and amalgamated into a dozen desirable ingredients for argument (called argument pieces), such as citations to cases, applications of legal theories, and references to prototypical factual scenarios. At the conclusion of the search, BankXX outputs the set of argument (...) pieces filled with harvested material relevant to the input problem situation.This research explores the appropriateness of the search paradigm as a framework for harvesting and mining information needed to make legal arguments. In this article, we describe how legal research fits the heuristic search framework and detail how this model is used in BankXX. We describe the BankXX program with emphasis on its representation of legal knowledge and legal argument. We describe the heuristic search mechanism and evaluation functions that drive the program. We give an extended example of the processing of BankXX on the facts of an actual legal case in BankXX's application domain — the good faith question of Chapter 13 personal bankruptcy law. We discuss closely related research on legal knowledge representation and retrieval and the use of search for case retrieval or tasks related to argument creation. Finally we review what we believe are the contributions of this research to the understanding of the diverse disciplines it addresses. (shrink)

According to Kant, all finite rational beings are unconditionally bound to obey the moral law, expressed in the formula of the categorical imperative. The assent (the taking to be true) to this law is a practical knowledge, since its ground is objectively and subjectively sufficient. However, the immortality of the soul and the existence of God are not objects of practical knowledge but just objects of practical faith, of moral faith more precisely, for the assent to them has (...) a barely subjectively sufficient ground and is not a necessary consequence of this knowledge of the moral law. According to our interpretation of the Kantian philosophy, the ground of moral faith in God's existence and in the immortality of the soul will be found only in the finite rational being with a disposition (Gesinnung) for the actual fulfilment of the moral law. We will defend this interpretation and maintain that the radical evil of human nature, diagnosed by Kant, prevents all men from having a moral faith, which does not mean that this obstacle is unsurmountable, since the conversion of men into Good is possible. In our view, what makes this conversion feasible is the possibility (implicit in Kant's thought) of an irregular act of the free-will, that of adopting a good fundamental maxim. (shrink)

According to the general rule explaining apparent authority, if the behaviour of a principal gives reasonable grounds for the third party to think that the principal has appointed the other person to be his agent, contracts concluded by the third party in the principal’s name shall be binding on the principal, notwithstanding the fact that the agent was not authorised by the principal to conclude particular contracts. In the absence of evidence of apparent authority the agent shall have to redress (...) the damage incurred on a third party in cases where the third party was not aware, and was under no obligation to be aware, of circumstances that the person acted in other person’s name without their express authorisation or in excess of their authority. The principal shall be liable for actions of the apparent agent if the following three requirements are proven: words or conduct of the principal caused the impression of authority; third party could reasonably presume the existence of sufficient authority; third party acted in good faith. The third party’s legitimate expectations must be aligned with the principal’s will in order to apply the doctrine of apparent authority efficiently. (shrink)

The diagnosis of death by neurological criteria (colloquially known as ‘brain death’) is accepted in some form in law and medical practice throughout the world, and has been endorsed in principle by the Catholic Church. However, the rationale for this acceptance has been challenged by the accumulation of evidence of integrated vital activity in bodies diagnosed dead by neurological criteria. This paper sets out 10 different Catholic responses to the current crisis of confidence and assesses them in relation to a (...) Catholic understanding of philosophical anthropology. Having considered each of these responses, none is found to provide good grounds for the moral certainty about death needed for current transplant practice to be ethically acceptable. Unless adequate grounds for the use of neurological criteria can be restored, current transplantation practice will have become what Pope John Paul II called a ‘furtive, but no less serious and real, form of euthanasia’. (shrink)

The recent global financial crisis raises pressing issues that are not exclusively economic. The health of the economy, Kevin T. Jackson contends, reflects the moral health of the wider culture: ethics must be considered along with economics to understand world markets, especially now that globalization and other forces have increasingly complicated the regulation of transnational corporate conduct. Virtuosity in Business calls on businesspeople and ethicists to expand their thinking by stressing the profound relevance of philosophy to business and economics. Virtuosity (...) in Business shows that ethics has been the overriding problem for business and that it is the only enduring solution. Drawing on a variety of philosophical sources, including Aristotle, Thomas Aquinas, and Jean-Paul Sartre, Jackson applies the concept of virtue to the competitive realm of the marketplace. Virtuosity, in all realms of human endeavor, is not merely a display of technical skill or adherence to conventional norms. The invisible law of virtuosity, which discourages misconduct and rewards good corporate citizenship, guides ethical firms and wise entrepreneurs toward greater success by playing a constructive part in the human enterprise. A pioneering work in the contemporary philosophy of business, Virtuosity in Business revivifies business ethics to address concerns arising from the global financial crisis, such as restoration of faith in the market, respect for human rights, and environmental sustainability. (shrink)

The secrets from the inner meaning of Torah form the soul of the Chasidic movement's thought. They inspire, revive, and inflame Jewish souls with a passion to constantly increase observance and devotion. For more than two centuries it has inoculated millions against the ravages of secularism and preserved the spiritual life of the Jewish nation. Chasidus emerged as a protection from the storm winds of modernity. Today's Jewish community might benefit from a new look at the Chasidic movement's beginnings and (...) reflections. Even those Jews who fulfill their religious obligations frequently perform rituals in a lifeless and superficial way. Were we to discover the depth and soulful vitality that fill Chasidic literature, a renewed passion might flame our faltering Jewish experience with the warmth of Torah. Unfortunately, for many of my contemporary American Jews, access to the gem-stones of the Chasidim has been denied. Chasidic works are overwhelmingly in Hebrew, and few good translations exist. This book provides an introduction to the basic terms and ideas of Chasidic texts. It is written for the interested lay reader who may be new to Torah study, as well as the yeshiva student who is knowledgeable about Biblical narratives and Talmudic law but may be new to the world of Chasidus. (shrink)

Cooperative relations steeped in honesty and good faith are a necessity for any viable society. This is especially relevant to the police institution because the police are entrusted to promote justice and security. Despite the necessity of societal honesty and good faith, the police institution has embraced deception, dishonesty, and bad faith as tools of the trade for providing security. In fact, it seems that providing security is impossible without using deception and dishonesty during interrogations, (...) undercover operations, pretextual detentions, and other common scenarios. This presents a paradox related to the erosion of public faith in the police institution and the weakening of the police's legitimacy. -/- The book seeks to solve this puzzle by showing that many of our assumptions about policing and security are unjustified. Specifically, they are unjustified in the way many of our assumptions about security were unjustified after the 9/11 terrorist attacks, when state institutions embraced a variety of brutal rules and tactics in pursuit of perceived security enhancements. The police are likewise unjustified in their pursuit of many supposed security enhancements that rely on proactive deception, dishonesty, and bad faith. -/- There are compelling reasons to think that the police's widespread use of proactive deception and dishonesty is inconsistent with fundamental norms of political morality regarding fraud and the rule of law. Although there are times and places for such tactics in policing, those times and places should be much more limited than current practices suggest. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Business for the Common Good: A Christian Vision for the Marketplace by Kenman L. Wong and Scott B. Rae, and: Market Complicity and Christian Ethics by Albino BarreraAnn GibsonBusiness for the Common Good: A Christian Vision for the Marketplace Kenman L. Wong and Scott B. Rae Downers Grove, Ill.: InterVarsity Press, 2011. 285 pp. $24.00Market Complicity and Christian Ethics Albino Barrera New York: Cambridge University Press, (...) 2011. 312 pp. $91.00At first glance, Business for the Common Good and Market Complicity and Christian Ethics appear to be similar. Their respective authors seek to address the relationship of business and ethics—two words many readers have a difficult time putting into the same sentence, let alone into the same philosophical discussion. Both books are part of a publisher’s series: the first is part of InterVarsity’s Christian Worldview Integration series and the second is part of Cambridge University Press’s New Studies in Christian Ethics series. Nonetheless, their purposes and approaches to the subject of business ethics are quite different. Kenman Wong and Scott Rae address whether it is possible for a person to be in business for any purpose other than earning profits (28); Albino Barrera addresses whether we are morally responsible for the unintended consequences of our market transactions and, if so, to what extent would or could this be true (3).Wong and Rae lay the foundation for their argument that working in business is a calling and service to God by discussing the role of work in God’s original plan for humankind. They then contend that the biblically inspired qualities [End Page 208] of service, trust, and perseverance can be developed and nurtured in one’s business practices (114). Recognizing that business also reflects the consequences of sin—with its focus on wealth, success, and ambition (115)—they recommend that business persons cultivate spiritual disciplines such as remembering the Sabbath, considering the use of time from God’s perspective, and learning to see one’s work as a gift from God rather than as wearisome toil. They remind the reader of the following: God is the ultimate owner of all our material possessions (123); we are wise when we hold our wealth and possessions loosely (124); and the Bible measures success by the excellence with which we work (as a human reflection of God’s excellence) and by our faithfulness in pursuing this goal of excellence (133, 134).Although Wong and Rae sought to write a philosophy or theology of business (37), the book they wrote is practical; it does not have much theory and its theological assumptions are not fully explicated. Rather, it provides helpful suggestions for addressing problematic tensions in business—such as management and power, marketing and manipulation, and globalization and economic inequity. The authors remind the reader that God calls for justice and commands us to love our neighbor. In this light, they call business persons to reen-vision their work as an opportunity for serving God and neighbor. In their discussion of ethics in business they unequivocally state that “God requires integrity in the workplace not because it’s profitable but because it’s right and honors him” (188). Although they use footnotes, Wong and Rae write in a conversational style and sometimes use personal examples and stories to illustrate their points. The book contains only a scripture index, and it does not include a bibliography.In contrast, Barrera writes in a tight, logical, highly readable style; he uses extensive footnotes and provides an excellent bibliography. Drawing on concepts from tort law, economics, social philosophy, and theology, he argues for the necessity of considering the unintended consequences of our market activities. Such consideration is required because “we are the generation that ushered in the post-industrial era” with its economic reality of globalization, which both “creates new and more demanding economic obligations even as it greatly expands the occasion for our complicity in or indifference to one another’s economic misconduct” (3).Barrera’s study opens with a theory section that discusses problems in business ethics—accumulative harms, overdetermination, and interdependence—even as it seeks to answer three questions: who is complicit, why... (shrink)

In Roman Catholic moral theology there is an ongoing debate between the proportionalist or revisionist school and the traditionalist school that has developed what is referred to as the ‘New Natural Law Theory’ or ‘Basic Goods Theory’ . The stakes in this debate have been raised with Pope John Paul II's encyclical Veritatis Splendor on fundamental moral theology that condemned ‘proportionalism’ or ‘teleologism’ as an ethical theory while utilizing many of the ideas, concepts, and terminology of the BGT, thereby implicitly (...) endorsing that ethical theory. While absolute norms and intrinsically evil acts have frequently been the focus of debate between these two schools, what is it that divides them fundamentally, on the level of ethical method? It is the role and function of reason and experience as two sources of moral knowledge, in part, that distinguish these two versions of natural law on the most basic level. While the BGT has a strict hierarchy of the sources of moral knowledge that posits the hierarchical magisterium as the definitive interpreter of reason and experience, revisionists posit a more dialogical relationship between reason, experience, and the magisterium. On certain ethical issues , the experience of the faithful as well as the rational arguments developed by revisionist Catholic moral theologians challenge some of the normative claims of the magisterium. This paper investigates the methodological use of reason and experience in each theory's interpretation of natural law and how and why these two sources of moral knowledge lead to fundamentally divergent normative claims on particular ethical issues. (shrink)

This study presents a defense of Kant's doctrine of the Highest Good. Though generally greeted with skepticism, I propose an interpretation that makes it an integral part of Kant's moral philosophy, which adds to the latter in interesting ways. Kant introduces the Highest Good as the final end of moral conduct. I argue that it is best understood as an end to be realized in history through human agency: a state of affairs in which all individuals act from (...) the Moral Law, and in doing so achieve their intended ends. Part One is a discussion of the Moral Law oriented towards showing how it can generate a final end. I proceed by showing how Kant's conception of duty and moral conduct incorporates a concern for ends and consequences. Included is a discussion of the concept of the good as object of pure practical reason, which is the basis for the Highest Good in Kant's system. Part Two is a survey of the texts which shows that they in fact contain different versions of the Highest Good. The aim here is an interpretation that states the leading idea and yields a way of saying what is essential. Though the Highest Good is commonly viewed as a theological ideal in which happiness would exist in proportion to virtue, I argue that a complete account can be given, faithful to the texts, in which neither feature appears. Here lies the key to my defense. Standard objections do apply to the Highest Good so conceived. But since neither the theological aspect nor the proportionality of happiness and virtue are essential features of the doctrine, the problems they raise do not affect the doctrine as a whole. Moreover, a secular alternative is found that is more consistent wth Kant's overall conception of moral conduct. It would be characterized by two distinct ends: the moral perfection of all individuals and the satisfaction of their permissible ends. (shrink)

Robert Richards has presented a detailed defense of evolutionary ethics, a revised version of Darwin's views and a major modification of E. O. Wilson's. He contends that humans have evolved to seek the community welfare by acting altruistically. And since the community welfare is the highest moral good, humans ought to act altruistically. Richards asks us to take his empirical premises on faith and aims to show how they can justify an ethical conclusion. He identifies two necessary conditions (...) for a naturalistic justification of morality (NJ): its premises (1) must be empirical and (2) concerned with morally relevant causal factors. I argue that these two conditions are insufficient. An NJ must also appeal to teleogical or teleonomic laws which identify proper effects and reliable causes of these effects. So I supplement biological faith with an NJ that I believe has a better chance of working since faith without works is dead. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Aquinas on the Twofold Human Good: Reason and Human Happiness in Aquinas's Moral ScienceColleen McCluskeyDenis J. M. Bradley. Aquinas on the Twofold Human Good: Reason and Human Happiness in Aquinas's Moral Science. Washington, D. C.: The Catholic University of America Press, 1997. Pp. vii-xiv + 610.In this book, Bradley examines whether one can construct an autonomous Thomistic philosophical ethics from Thomas Aquinas's theologically flavored moral writings. (...) In order to answer this question, Bradley provides a comprehensive analysis not only of Aquinas's moral psychology, but also of the Aristotelian doctrines which to a certain extent provide its foundation. Bradley begins with a look at Aristotle's concept of a science, his notion of practical reasoning, and his accounts of deliberation, choice, and the ultimate end for human beings. Bradley also discusses Aquinas's interpretations of those theories and the extent to which Aquinas's views follow and diverge from Aristotle's writings. The metaphysical principles grounding the notions of a science, of being, and of goodness and their connections to Aquinas's ethics are noted and explained. In his discussion of the moral theory itself, Bradley frames his presentation around Aquinas's theory of action (especially its volitional aspects and the workings of practical reason) and the role of natural law, although the virtues are not neglected. Bradley's treatment throughout the book is meticulous (although in my view somewhat repetitive).The most interesting aspect of this book is Bradley's discussion of the paradoxical nature of Aquinas's ethical theory. As he notes, Aquinas's theory has a teleological orientation; his system is structured around the idea that human beings have a particular ultimate end. Aquinas argues that due to their nature, all human beings desire to attain their ultimate end. As is also well-known, Aquinas specifies that this end is the beatific vision and that only the vision of the divine essence is able to satisfy completely [End Page 118] all human desires. However, this end is not only inaccessible to human beings in this life, but one that they are unable to obtain without the aid of God's grace. But it follows from this that human beings have a natural desire that cannot be satisfied naturally, a paradoxical position, especially for an Aristotelian. For according to Bradley, Aquinas argues that although one can establish through philosophical arguments that human beings have a natural desire which only God can satisfy, no philosophical argument can establish that God, in fact, ever satisfies this desire. That God chooses to do so is a matter of faith and revelation. Thus, as far as philosophy is concerned, human beings may have been structured with an unsatisfiable desire. This violates an important Aristotelian notion about teleology, the idea that there can be no futile natural desire. The inability to satisfy a natural desire for an ultimate end renders a teleologically based system incoherent. It follows that. given his characterization of the ultimate end, a characterization that Aquinas thinks he can establish on philosophical grounds alone, his purely theological commitments are integral and necessary components of his moral system. Thus, Bradley's answer to the question he raises in the book is no, one cannot construct an autonomous Thomistic philosophical ethics from Aquinas's moral writings.In the process of arriving at this conclusion, Bradley critiques the work of two philosophers, Jacques Maritain and Santiago M. Ramirez, both of whom argue that a purely philosophical ethics can be built out of Aquinas's writings, although both maintain that Aquinas himself did not do so. Maritain and Ramirez take Thomistic philosophical ethics to retain basic Christian beliefs but to be established on the basis of natural reasoning processes alone, independently of revelation. Bradley raises a number of objections against their characterizations of Thomistic ethics, among them the worry that, ultimately, such philosophical systems are not truly independent of a theological ethics (pace Maritain) and the charge that Aquinas's characterizations of the supernatural nature of the human ultimate end is not taken seriously (Ramirez).Space permits only a cursory examination of some general concerns over Bradley's position. Bradley argues that what is fundamental to... (shrink)

We use Bayesian tools to assess Law’s skeptical argument against the historicity of Jesus. We clarify and endorse his sub-argument for the conclusion that there is good reason to be skeptical about the miracle claims of the New Testament. However, we dispute Law’s contamination principle that he claims entails that we should be skeptical about the existence of Jesus. There are problems with Law’s defense of his principle, and we show, more importantly, that it is not supported by Bayesian (...) considerations. Finally, we show that Law’s principle is false in the specific case of Jesus and thereby show, contrary to the main conclusion of Law’s argument, that biblical historians are entitled to remain confident that Jesus existed. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered (...) to fight, they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)