"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

Leveraging perspectives from social cognitive theory, the attention-based view, and social networks literatures, we tested the relationship between unethical choice and network unethicality, which we define as respondents’ perceptions of their peer advisors’ unethical choices. Although social cognitive theory predicts that perceptions of peer advisor unethical choice are positively associated with unethical choice, we theorize that the nature of this relationship depends on the personality of the actor and the situation. Results from a lagged study suggest that individual and situational (...) variables may act as key buffers to the adverse impact of unethical social influence on ethical choice. Strengths, limitations, and directions for future research are discussed. (shrink)

Natural Justice is a bold attempt to lay the foundations for a genuine science of morals using the theory of games. Since human morality is no less a product of evolution than any other human characteristic, the book takes the view that we need to explore its origins in the food-sharing social contracts of our prehuman ancestors. It is argued that the deep structure of our current fairness norms continues to reflect the logic of these primeval social contracts, (...) but the particular fairness norm a society operates is largely a product of cultural evolution. In pursuing this point, the book proposes a naturalistic reinterpretation of John Rawls' original position that reconciles his egalitarian theory of justice with John Harsanyi's utilitarian theory by identifying the environment appropriate to each. (shrink)

The following responses to the scholars who were kind enough to comment on my Natural Justice in this symposium have been kept to a minimum by addressing only issues where I think a misunderstanding may have arisen.

This comprehensive study of Aristotle's Politics argues that nature, justice, and rights are central to Aristotle's political thought. Miller challenges the widely held view that the concept of rights is alien to Aristotle's thought, and presents evidence for talk of rights in Aristotle's writings. He argues further that Aristotle's theory of justice supports claims of individual rights that are political and based in nature.

Fred Miller offers a controversial reappraisal of the Politics, suggesting that nature, justice, and rights are central to Aristotle's political thought. He sheds new light on Aristotle's relation to modern natural rights theorists, and to the current liberalism-communitarianism debate.

I raise a few questions about key points in the argument of Natural Justice. 1. The pivotal role assigned to the theory of indefinitely repeated games appears to be both implausible and unnecessary. 2. The evolutionary foundations of the Nash bargaining solution are not completely secure, and its role in the account of interpersonal comparisons of utility is questionable. 3. Free renegotiation behind the veil of ignorance appears neither to have an evolutionary rationale nor to be a brute (...) fact about the way men are. (shrink)

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for (...) human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans--it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to David Hume's famous argument about deriving ought from is, G. E. Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos--in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason--using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law--the promotion of human flourishing. (shrink)

Scholars debate whether Hobbes held to a command theory of law or to a natural law theory, and to what extent they are compatible. Curiously, however, Hobbes summarizes his own teachings by claiming that it is “natural justice” that sovereigns should study, an idea that recalls ancient virtue ethics and which is seemingly incompatible with both command and natural law theory. The purpose of this article is to explicate the general significance of natural justice (...) in Leviathan. It is argued that below the formal and ideological claims regarding the law’s legitimacy, the effective ground of the legitimacy of both the civil and natural laws is sovereign virtue. In turn, it is argued that the model for this idea was found in Aristotle. As such, this article constitutes a general recasting of Hobbes’s legal philosophy with a focus on the natural person of the sovereign. (shrink)

Ken Binmore has written an exciting book and I am in complete agreement with his objectives and conclusions. But his approach is flawed because of his reliance on tools of analysis to understand the way the mind and brain have developed that are not up to explaining our evolving understanding of the human environment.

offers an evolutionary approach to morality, in which moral rules form a cultural system that is robust and evolutionarily stable. The folk theorem is the analytical basis for his theory of justice. I argue that this is a mistake, as the equilibria described by the folk theorem lack dynamic stability in games with several players. While the dependence of Binmore's argument on the folk theorem is more tactical than strategic, this choice does have policy implications. I do not believe (...) that moral rules are solutions to the Nash bargaining problem. Rather, I believe that human beings are emotionally constituted, by virtue of their evolutionary history, to embrace prosocial and altruistic notions of in-group–out-group identification and reciprocity. These aspects of human nature are incompatible with Binmore's notion that humans are self-regarding creatures. I present empirical evidence supporting a specific form of human, other-regarding preferences known as strong reciprocity. Key Words: justice • ethics • folk theorem • evolutionary game theory. (shrink)

In Plato’s Gorgias 482c4–484c3, Callicles advances a concept of natural justice: the laws of the polis must agree with nature, that is, human nature. Since human nature is characterised by its desire to get a greater share, nature itself makes it legitimate that stronger human beings get a greater share than weaker ones. Socrates objects: Callicles’ theoretical approach to civic life poses a threat to the polis’ community, its citizens, and to the friendship amongst its citizens. However, Socrates (...) accepts Callicles’ premise, that the laws of the polis must agree with nature. Still, he disagrees with Callicles about the nature of human nature and proposes an alternative theory of human nature, eventually leading to his alternative concept of natural justice. The article explains the arguments underpinning these two concepts of natural justice, including the conflicting understandings of human nature. (shrink)

This paper, responding to recent work by Tony Burns, has two main interpretive purposes first, to explain in what sense Aristotle's natural justice is natural, yet variable; and second, to explain why Aristotle interpreted Antigone's defence as an appeal to natural law (rather than, say, to particular unwritten law). This requires a careful untangling of Aristotle's usage of 'natural' in several different senses, both descriptive and normative. In short, it is normatively natural for humans (...) to excel at what is distinctive of their descriptive nature. Since human descriptive nature is flexible, so is what is normatively natural for humans. And it is a matter of natural justice that one must not be hindered from or punished for doing what is normatively natural. This Aristotelian line of thought is then briefly explored as it reappears in Edmund Burke's discussion of natural law. (shrink)

The article discusses the problem of natural justice which has been considered by Aristotle in his (1) Nicomachean and Eudemian Ethics and (2) Magna Moralia. In his Nicomachean and Eudemian Ethics Aristotle says of natural justice that it is changeable and not the same everywhere. The implication seems to be that no action, not even murder, is always wrong. But, as is evident especially from his Magna Moralia, Aristotle distinguishes justice into the “what” (equality), the (...) “in what” (proportion between persons and things), and the “about what” (what things are exchanged with which persons). The article concludes that Aristotle allows for variability only in the “about what,” while in the “what” and the “in what” he allows for no variability. (shrink)

John Rawls presents a liberal conception of international justice in his book The Law of Peoples, and this liberal conception of international justice has inspired a variety of responses from various perspectives. However, it seems that most such responses come from western perspectives, and that there is hence a corresponding paucity of seriously challenging responses based on non-western traditions. This paper aims to analyze Rawls’s liberal conception of international justice in view of the concept of natural (...) justice expressed within the Book of Change in order to illuminate the limitations and problems of Rawls’s conception in practice as well as in theory. Rawls employs the idea of political liberalism to construct a liberal conception of international justice that can be applied to a society of societies. Rawls addresses the eight principles for justice among free and democratic peoples, which have been historically accepted by western peoples. He admits that these principles are incomplete. There is no theoretical order among the eight principles equivalent to the lexical order of the two principles of justice in A Theory of Justice. There are no guidelines or basic principles for resolving the problem of priority that arises when the principles are themselves in conflict with one another. This situation may generate competing conceptions of justice within the society of peoples. Rawls mentions natural justice in his explanation for the extension of liberal political principles to decent hierarchical peoples. He takes as an example of natural justice the rule of formal equality that “similar cases be treated similarly.” He does not develop any further the idea of natural justice for his theory of international justice, which could potentially span the gap between his ideal theory and non-ideal theory, or enhance the reasonableness of his international justice, especially for non-liberal peoples. The Book of Change expresses the idea of natural justice that underlies the principle of Yin-Yang, which differs fundamentally from the liberal contract paradigm. The paper will argue that the idea of natural justice should be seriously considered for justice among peoples since it can provide the bedrock for criticizing non-public reason as well as public reason. (shrink)

John Rawls presents a liberal conception of international justice in his book The Law of Peoples, and this liberal conception of international justice has inspired a variety of responses from various perspectives. However, it seems that most such responses come from western perspectives, and that there is hence a corresponding paucity of seriously challenging responses based on non-western traditions. This paper aims to analyze Rawls’s liberal conception of international justice in view of the concept of natural (...) justice expressed within the Book of Change in order to illuminate the limitations and problems of Rawls’s conception in practice as well as in theory. Rawls employs the idea of political liberalism to construct a liberal conception of international justice that can be applied to a society of societies. Rawls addresses the eight principles for justice among free and democratic peoples, which have been historically accepted by western peoples. He admits that these principles are incomplete. There is no theoretical order among the eight principles equivalent to the lexical order of the two principles of justice in A Theory of Justice. There are no guidelines or basic principles for resolving the problem of priority that arises when the principles are themselves in conflict with one another. This situation may generate competing conceptions of justice within the society of peoples. Rawls mentions natural justice in his explanation for the extension of liberal political principles to decent hierarchical peoples. He takes as an example of natural justice the rule of formal equality that “similar cases be treated similarly.” He does not develop any further the idea of natural justice for his theory of international justice, which could potentially span the gap between his ideal theory and non-ideal theory, or enhance the reasonableness of his international justice, especially for non-liberal peoples. The Book of Change expresses the idea of natural justice that underlies the principle of Yin-Yang, which differs fundamentally from the liberal contract paradigm. The paper will argue that the idea of natural justice should be seriously considered for justice among peoples since it can provide the bedrock for criticizing non-public reason as well as public reason. (shrink)

Unlike many major figures in Western intellectual history, Hobbes has refused to become dated and quietly take his appointed place in the museum of historical scholarship. Whether by way of adoption or reaction, his ideas have remained vibrant forces in mankind's attempts to understand the problems and dilemmas of living peaceably with one another. As Richard Ashcraft said a few years ago: One of the standards by which the greatness of political theorists is measured, is their ability to evoke in (...) us new insights into 'the human condition'. Only a few political writers have risen Dionysus-like from the titanic assaults of their critics to become even more formidable forces in the shaping of our destiny. One of these giants is surely the irascible l and irrepressible Thomas Hobbes . Given the power of Hobbes's thought, it is not then perhaps surprising to find that his writings have generated seemingly endless scholarly controversy and an astonishing range of imcompatible interpretations. Among other things, he has been interpreted as a theist and an atheist, as a utilitarian and a deontologist, a humanist and a scientist, as a traditional natural law theorist and a legal positivist, a contractualist and an absolutist - indeed, as Professor Morris notes in his contribution to the present volume, 'as almost any kind of philosophical 'ist except Platonist or Aristotelist'. (shrink)

This book attempts to create an evolutionary theory of fairness. Sharing food is commonplace in the animal kingdom because it ensures animals that share against hunger. Anthropologists report that hunter-gatherer societies which survived into the 20th century shared on a very egalitarian basis. What can such information tell us about the sense of fairness with which modern man is born? Using game theory as a basic tool, the book argues that fairness norms should be seen as a device for selecting (...) an efficient equilibrium in the human game of life. Evolutionary arguments are then used to argue that the deep structure of this device resembles the original position formulated by John Rawls in his Theory of Justice. Such an evolutionary framework allows problems over welfare comparison and norm enforcement to be tackled in a manner that resolves the long debate between utilitarianism and egalitarianism. (shrink)

This essay argues that Robert Grosseteste’s Latin translation of Aristotle’s passage on natural justice was philosophically determinant for its medieval reception. By altering the passage, Grosseteste allowed for a reconciliation of prima facie opposing views on natural law, namely: On one hand, the Ciceronian-Stoic and Augustinian-Neoplatonic idea that natural law is primarily immutable; and on the other, Aristotle’s claim that all things that are naturally just are subject to change. Focusing on Albert the Great’s first commentary (...) on the Nicomachean Ethics, and on Thomas Aquinas’s Sententia libri ethicorum, the paper shows that several distinctions made by these authors, which account for a restricted description of how naturally just things can change, were allowed and suggested by Grosseteste’s alterations of the passage. (shrink)

it may be debatable whether or not the passage on natural justice from the Nicomachean Ethics is a crucial component of Aristotle's account of justice and politics; nonetheless, its enormous influence on western ethical and juridical theory is unquestionable. This influence is largely due to the enthusiastic reception of that passage by medieval thinkers who paid somewhat exaggerated attention to this brief and obscure passage.The thirteenth-century philosophical scene has rightly been described as an 'Aristotelian crisis.' The general (...) Christian view of life and the universe, developed by theologians up to the end of the twelfth century, was deeply rooted in St. Augustine's thought. However, that... (shrink)

This article sets out and comments on the arguments of Binmore 's Natural Justice, and specifically on the empirical hypotheses that underpin his social contract view of the foundations of justice. It argues that Binmore 's dependence on the hypothesis that individuals have purely self-regarding preferences forces him to claim that mutual monitoring of free-riding behavior was sufficiently reliable to enforce cooperation in hunter-gatherer societies, and that this makes it hard to explain why intuitions about justice (...) could have evolved, since in such a society intuitions about justice would have had no adaptive advantage. I argue that it is empirically plausible that human beings display systematic other-regarding preferences. These could be incorporated into Binmore 's general framework in a way that would enrich it and make it more useful for solving practical problems about justice. Key Words: natural justice • fairness • norms • evolution • self-regarding preferences • Rawls • social contract. (shrink)

A review of Robert Chambers, Charles Mitchell and James Penner, eds., Philosophical Foundations of the Law of Unjust Enrichment (Oxford University Press, 2009).