Do people have obligations by virtue of the fact that a given country is their country? Actual contract theory says they do because they have agreed to act in certain ways. Contemporary philosophers standardly object in terms of the 'no agreement' objection and the 'not morally binding' objection. I argue that the 'not morally binding' objection is not conclusive. As for the 'no agreement' objection, though actual contract theory succumbs, a closely related plural subject (...) theory of political obligation does not. Plural subject theory may be the truth in actual contract theory and should be explored in its stead. (shrink)

Nicole Hassoun’s Globalization and Global Justice: Shrinking Distance,Expanding Obligations offers a novel argument for the existence ofpositive rights for the world’s poor, and explores institutional alternativessuitable for the realization of those rights. Hassoun’s argument is contractualist, and makes the existence of positive rights dependupon the conditions necessary for meaningful consent to the global order. Itthus provides an interesting example of social contract theory in the globalcontext. But Hassoun’s argument relies crucially upon the ambiguous natureof the concept of consent. (...) Drawing broadly upon the social contract theorytradition, Hassoun relies upon actual consent theory, democratic theory, andhypothetical consent theory. Each theoretical approach makes use of its ownconception of consent. Rather than select one of these conceptions overthe others, she makes use of all three. In doing so, she introduces a crucialambiguity into the terms that, on her account, a legitimate global order mustsatisfy. The resolution of this ambiguity will circumscribe any effort, on thepart of Hassoun or others, to specify the terms of any global social contract. (shrink)

This article proposes a specific logic of dynamics for integrative social contracts theory that combines two empirically oriented process extensions strengthening concreteness of Donaldson and Dunfee’s conceptualization, namely international policy regime theory and Tiebout migration. While either would help “dynamize” and “concretize” ISCT, the two combined are even more insightful. Real-world policy regime processes can develop concrete action-guiding norms instantiating hypernorms to guide business decisions. Donaldson and Dunfee placed empirical reliance on expectation of converging parallel evolution of universal (...) principles and authentic local values. ISCT remains vague on how global or local norms can develop and change, for two reasons. First, ISCT does not explain mechanisms for how proposed hypernorms can become actual global norms and also become accepted across extant authentic communities. International policy regime theory explains how hypernorms can become instantiated as global norms expressed in policy regimes. Second, a basic element in ISCT is implied consent positing free exit from voluntary moral communities. Empirically, individuals or businesses may be unable to exit from undesired membership in authentic communities to which they do not consent. The Tiebout migration model provides valuable insights concerning how substantive mobility or its absence improves on the minimum ISCT assumption of implied consent. An integrated logic of ISCT dynamics generates a three-level framework in which instantiated hypernorms and authentic community norms can empirically change, and individuals or businesses can migrate more freely across extant communities. (shrink)

Integrative social contracts theory (ISCT) uses empirical methods to develop guidelines for international business ethics. This article criticizes ISCT in terms of the way people actually think about contracts and agreements around the globe. Differences in orientations to communications context, moral reasoning, and institutional and structural conditions make the identification of authentic norms, hypernorms, and relevant communities problematic. The difficulties of the empirical methods suggest recourse to more traditional theoretical approaches for the identification of hypernorms as well as a (...) stronger test for the compatibility of authentic norms with hypernorms. (shrink)

This paper explores two feminist contributions to the analysis of the social contract tradition, comparing the political philosophy of Carole Pateman with the moral theory of Jean Hampton, to ask two questions. First, which points must feminists continue to argue in their critique of the social contract tradition today? The second question is: Can feminists actually draw anything from the social contract tradition today? It argues that Pateman's critique of contractarianism continues to be useful when read (...) in the context of her analysis of “self‐ownership” and subordination rather than as a rewriting of the social contract. Hampton's deployment of a Kantian test for the failure of respect for personhood within domestic (and other) relationships does not undermine Pateman's position. Consideration of how such an ideal can be understood as potentially compatible with Pateman's perspective raises issues about the radical potential within claims for equal respect for personhood. In Hampton's work, widespread “test failure” can be used to indicate that political action rather than moral analysis is required. Hampton assumes that those employing the test are able to abstract themselves sufficiently from their current position to imagine what it would be to be treated as a person. It is argued that this “moral test” should be envisaged as being asked in concert with others, at which point it has the potential to become political action. (shrink)

Does one have special obligations to support the political institutions of one’s own country precisely because it is one’s own? In short, does one have political obligations? This book argues for an affirmative answer, construing one’s country as a political society of which one is a member, and a political society as a special type of social group. The obligations in question are not moral requirements derived from general moral principles. They come, rather, from one’s participation in a special kind (...) of commitment: a joint commitment. This theory is referred to as the plural subject theory of political obligation since, by the author’s definition, those who are party to any joint commitment constitute a plural subject of some action in a broad sense of the term. Several alternative theories are compared and contrasted with plural subject theory, with a particular focus on the most famous — actual contract theory — according to which membership in a political society is a matter of participation in an agreement. The book offers plural subject accounts of both social rules and everyday agreements, and includes discussion of political authority and punishment. (shrink)

The existing divergence between how we talk about contract law and actual contract experience, the parties moral obligation to keep contracts and the government’s role in regulating contracts, are the three main issues addressed in this article. The analysis of this article points to a narrower and more cautious approach to contract law, not towards a general theory, but one focused on the rules of a single time and place.Resumen:La divergencia que existe entre la forma (...) en que hablamos del derecho contractual y la actual experiencia contractual, la obligación moral de las partes contratantes de mantener un contrato, y el papel del gobierno en la regulación de los contratos, son los tres asuntos principales que se abordan en este artículo. El análisis señala la perspectiva de una más estrecha y cautelosa visión del derecho contractual, pues la teoría propuesta no es una más de las teorías generales, sino una teoría desafiante enfocada en las reglas de un tiempo y lugar específico. (shrink)

Pateman challenges the way contemporary society functions by questioning the standard interpretation of an idea that is deeply embedded in American and British political thought: that our rights and freedoms derive from the social contract explicated by Locke, Hobbes, and Rousseau and interpreted in the United States by the Founding Fathers. The author shows how we are told only half the story of the original contract that establishes modern patriarchy. The sexual contract is ignored and thus men's (...) patriarchal right over women is also glossed over. No attention is paid to the problems that arise when women are excluded from the original contract but incorporated into the new contractual order. One of the main targets of the book is those who try to turn contractarian theory to progressive use, and a major thesis of the book is that this is not possible. Thus those feminists who have looked to a more "proper" contract- one between genuinely equal partners, or one entered into without any coercion- are misleading themselves. In the author's words, "In contract theory universal freedom is always a hypothesis, a story, a political fiction. Contract always generates political right in the forms of domination and subordination." Thus the book is also aimed at mainstream political theorists, and socialist and other critics of contract theory. The author offers a sweeping challenge to conventional understandings- of both left and right- of actual contracts in everyday life: the marriage contract, the employment contract, the prostitution contract, and the new surrogate mother contract. By bringing a feminist perspective to bear on the contradictions and paradoxes surrounding women and contract, and the relation between the sexes, she is able to shed new light on fundamental political problems of freedom and subordination. (shrink)

A contract theory is an attempt both to make normative sense of contract law as an institutional type and to come up with criteria for the evaluation of the law of any particular place. There is no precise rule telling us how far the prescriptions of a theory can deviate from actually existing contract law and still be a theory of contract — rather than a political proposal to replace contract law with (...) something else. But we can say roughly that contract theory aims to provide normative foundations for the type of legal institution that enforces (some) agreements and unilateral commitments. Having provided an account of the point of having an institution of that general kind, the theory can then be used to evaluate existing examples. (shrink)

Social contract theory is a theory about how the moral assessment of actions, practices, institutions, laws, constitutions, or related items is based – directly or indirectly – on the consent – actual or hypothetical – of the members of society. Hobbes, Locke, Rousseau, and Kant represent the main historical figures. Rawls, Gauthier, and Scanlon are the main contemporary figures.

This paper considers whether the available evidence from archeology, biological anthropology, primatology, and comparative gene-sequencing, can test evolutionary game theory models of cooperation as historical hypotheses about the actual course of human prehistory. The examination proceeds on the assumption that cooperation is the product of cultural selection and is not a genetically encoded trait. Nevertheless, we conclude that gene sequence data may yet shed signi cant light on the evolution of cooperation.

Contract is the dominant model for political philosophy's understanding of government grounded on the consent of the governed. However, there are at least five disabilities attached to classical social contract theory: the grounding contract never actually occurred; its provisions are vague and contestable; the stringency of the obligation thereby established is dubious; trans-generational consent is questionable; interpretive methods for giving effect to the contract are ill-specified. By contrast, the biblical story of the covenant Israel embraces (...) at Sinai is shown to be more adequately attentive to each of these five desiderata. The essay then focuses on the U.S. Constitution, arguing that in many ways it is more reflective of covenantal legitimating themes than those of social contract. The result is a promisingly different mode of understanding government by the consent of the governed. (shrink)

In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution... but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view.... We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis (...) to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances. (shrink)

We applaud Boyer's attempt to ground the psychology of ownership partly in a cooperative logic. In this commentary, we propose to go further and ground the psychology of ownership solely in a cooperative logic. The predictions of bargaining theory, we argue, completely contradict the actual features of ownership intuitions. Ownership is only about the calculation of mutually beneficial, reciprocal contracts.

The title of this special topic in RMM is borrowed from a 1978 paper of Hillel Steiner in which he argues against Robert Nozick's invisible hand conception of the emergence of the state. Steiner believes that central institutions of social order such as money and government need some form of conscious endorsement by individuals to emerge and to persist over time. -/- Tony de Jasay's critique (in Philosophy 85, 2010) of Bob Sugden's plea for a Humean version of contractarianism (see (...) RMM, Vol 0) motivated us, to take this old – but still central – theme of the debate on the origin of social order as one starting point in a new attempt to evaluate the idea of a social contract). -/- Within the 35 years since the publication of Hillel Steiner's paper different advances have been made in economics and philosophy that may well shed some new light on some of the fundamental issues in the debate about a contractarian conception of social order. These make us confident that a new attempt to explore the contractarian idea is well worthwhile. -/- Those who first motivated this project, Hillel Steiner, Anthony de Jasay, and Robert Sugden, as well as a number of other renowned scholars confirmed to contribute. The special topic will actually start with a previously unpublished paper by Hillel Steiner, originally written in 1986, in which he extends and elaborates on his argument about money from the 1978 paper, and with an original article by Anthony de Jasay, in which he further clarifies his worries. A response by Robert Sugden will follow. Further contributions will discuss the matter by reference to the roots of the debate in seventeenth and eighteenth century philosophy or to recent advancements in economics, the behavioral sciences or in social philosophy. Some of the contributions confirmed are already in a very elaborated stage and ready to be published soon. They are announced here right from the start and – for the time being – marked as 'to appear'. -/- As always, the special topic is an open ended project and further contributions will be considered; please send your submission to [email protected] (see 'How to Submit' for details). Also, readers are invited to submit shorter comments for the discussion section, which may be published after an abridged refereeing process. (shrink)

This author’s reply addresses critiques by Daniel Engster, Kelly Gawel, and Andrea Westlund about my 2020 book, Freedom to Care: Liberalism, Dependency Care, and Culture. I begin with a statement of my commitment to liberalism. In section two, I defend the value of a distinction between conceptions of persons in the real world and in contract theory to track inequalities in care when indexed to legitimate needs. I argue, as well, that my variety of contract theory (...) supplies the normative content needed to reject the subordination of women of color. Acknowledging the enduring danger of expressive subordination, I emphasize my theory’s compatibility with the full social inclusion of people with disabilities. Section three then defends liberal dependency care’s compatibility with radical critique and transformative change by emphasizing the abstract nature of its core theoretical module. Finally, in section four, I reaffirm conceptual distinctions between autonomy skills, care skills, and a sense of justice by explicating their theoretical roles. In that section, I also embrace Westlund’s insight that theorists of justice need to have skills enabling responsiveness to other perspectives. To this new requirement for actual theorists of justice, I further add that we must attain capacities to engage critically with our society’s norms. Thus, the final section of this article supplements the justificatory module of liberal dependency care, building from the necessary conditions specified as two-level contract theory toward an account of necessary and sufficient conditions for this liberalism’s justificatory module. (shrink)

Doubts the adequacy of teh accounts of Humes' successful refutation of the theory of a social contract. Groups Humes' refutation into three arguments: 1) hardly any social contracts are idscernible in the hoistories of actual governments 2) contract theory must be wrong because it conflicts with ordinary people's views on the sunject 3) utilitarian Argues that it is doubtful whether any of these arguments or clusters of arguments really refutes contract theory; certainly, none (...) achieves a refutation of the 'simple and overwhelming' kind so often attributed to Hume. (shrink)

Soldiers sign contracts to obey lawful orders; they also swear oaths to this end. The enlistment contract for the Armed Forces of the United States combines both elements: -/- '9a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be: (1) Required to obey all lawful orders and perform all assigned duties … (4) Required upon order to serve in combat or other hazardous situations.' -/- We standardly (...) think that these oaths and contracts give soldiers new moral reasons to fight. Many also think that soldiers who are ordered to fight by legitimate states have moral reasons to obey those orders, just in virtue of their provenance. -/- We generate these reasons through our voluntary decisions—to sign the contract or swear the oath; to form the institutions and give the orders. They are therefore additional moral reasons, on top of the reasons that we have prior to those voluntary decisions. Simply because they are additional, these reasons seem limited in force and scope. In particular, they arguably cannot override pre-existing commitments. For example, if I already have a duty not to kill an innocent person, my promising to breach that duty seems irrelevant to whether doing so is permissible. Similarly for orders issued by legitimate states: the citizens of a legitimate state have pre-existing moral reasons not to kill the innocent; by what alchemy could their state's orders allow combatants to override those reasons? If additional reasons could make prohibited acts permissible, as Sidgwick observed, ‘we could evade any moral obligation by promising not to fulfil it, which is clearly absurd’ (Sidgwick 1981). -/- We might conclude that the contracts soldiers sign, the oaths they take and the orders they receive have weight only when they pertain to acts that soldiers are already allowed to do. Perhaps these additional reasons can require actions that would otherwise be merely permissible, but they cannot license otherwise prohibited actions. If this is right, then it radically limits the relevance of contracts, oaths and authority to the ethics of war, since almost all conflicts involve soldiers breaching some pre-existing moral duties. -/- This is obviously true for soldiers fighting on the unjust side in a war, since almost all the killing they do is unjust. But in all actual wars soldiers on the just side also kill at least some innocent victims, whether as part of an unjust subordinate aim, as ‘collateral damage’, or simply because their adversaries are not sufficiently responsible for unjustified threats to be liable to be killed. If additional reasons cannot make otherwise prohibited acts permissible, then they are practically irrelevant to the ethics of killing in war, at least in this sense: if fighting is impermissible without regard to the contract, oath and authority of their state, then fighting is simply impermissible. -/- This is a tempting conclusion. In this paper, however, I argue that even if it is true at the level of objective permissibility, it is false for subjective permissibility. And since subjective permissibility is where (at least some of) the action is in the ethics of war, this is a significant result. I explain first why additional reasons can make otherwise subjectively prohibited acts permissible, then why just war theorists should care more than they seem to about subjective permissibility. Although I focus throughout on the ethics of war, my arguments generalise to all kinds of additional reasons. (shrink)

Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract (...) do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set of reasons we endorse — we are not justified in regulating contracts reluctantly. Contracts are entitled to the privilege of liberal regulatory deference only to the extent that they are the work product of individual autonomy. The assumption that contract is voluntary does enormous work in most normative theories of contract. This Article takes still more seriously the obstacles to autonomous choice that contracting parties face. The most important constraints are not in contract law itself but in the material and moral imperatives that dictate parties’ contracting preferences. Many contracts are driven by circumstantial considerations or actual background obligations. While these contracts are not wholly lacking in the element of voluntariness, we should distinguish them from those choices — and those contracts — which more fully realize our potential to self-consciously author our relations with others. Autonomous choice in contract requires more than Dagan and Heller imply, and it is likely beyond the power of contract law standing alone to deliver it. (shrink)

This author’s reply addresses critiques by Daniel Engster, Kelly Gawel, and Andrea Westlund about my 2020 book, Freedom to Care: Liberalism, Dependency Care, and Culture. I begin with a statement of my commitment to liberalism. In section two, I defend the value of a distinction between conceptions of persons in the real world and in contract theory to track inequalities in care when indexed to legitimate needs. I argue, as well, that my variety of contract theory (...) supplies the normative content needed to reject the subordination of women of color. Acknowledging the enduring danger of expressive subordination, I emphasize my theory’s compatibility with the full social inclusion of people with disabilities. Section three then defends liberal dependency care’s compatibility with radical critique and transformative change by emphasizing the abstract nature of its core theoretical module. Finally, in section four, I reaffirm conceptual distinctions between autonomy skills, care skills, and a sense of justice by explicating their theoretical roles. In that section, I also embrace Westlund’s insight that theorists of justice need to have skills enabling responsiveness to other perspectives. To this new requirement for actual theorists of justice, I further add that we must attain capacities to engage critically with our society’s norms. Thus, the final section of this article supplements the justificatory module of liberal dependency care, building from the necessary conditions specified as two-level contract theory toward an account of necessary and sufficient conditions for this liberalism’s justificatory module. (shrink)

Modern contract law is characterized by a certain kind of unity and multiplicity. On the one hand, it establishes fundamental principles that apply to all contracts in general. But at the same time, it specifies further principles and rules for particular kinds of contracts or transaction-types that mark out their distinctive features, incidents and effects. Clearly, a viable theory of contract law should be able to provide a suitable account of both aspects. The central critical contention of (...) The Choice Theory of Contracts is that all prior approaches, in particular rights-based theories, have failed to do so. Indeed, Dagan and Heller argue that only a theory that explains the settled rules of contract law as teleologically oriented toward facilitating individuals’ pursuit of their different substantive goods, and thus as primarily power-conferring in this particularly robust sense, can provide the needed account. Such a theory, they believe, would be not only interpretatively accurate with respect to the actual law but also fully acceptable as a liberal view of contract. This Article challenges the core contentions of choice theory, suggesting why it may be unable to meet its own goal of explaining how contract law coherently specifies and integrates the general and specific dimensions of enforceable agreements. The Article looks into basic contract doctrines in order to specify a general conception of the contractual relation that can meet this desideratum and it sketches how, beginning with that conception, contract law unfolds a rich multiplicity of transaction-types. The resulting view is liberal but rights-based rather than teleological, and it proposes an alternative understanding of how the rules of contract law are power-conferring as well as duty-imposing. (shrink)

Abstract:In contrast to “social contract” theories of the corporation, a moral justification of the corporation as actual, not hypothetical, agreement is presented. Central to the justification is the idea of personal projects, as developed by Loren Lomasky. The key idea is the role that corporations can play in the construction and advancement of personal, value-creating projects. The concept of the corporation as actual agreement, as a type of “right of association” theory, is defended against influential criticism (...) of such theories by Thomas Donaldson. (shrink)

This chapter argues that the same logic that imbues the state with the legitimate authority to punish also imposes restraints on that authority. It suggests that scholarship on punishment puts more emphasis on the political legitimacy of state punishment rather than on the moral question of what is deserved by criminals. It turns to Rousseau's social contract based justification for punishment as a crucial resource in that effort. It begins by closely examining Rousseau's claim that the criminal consents to (...) punishment, and by suggesting that his seemingly absurd and perverse claims are actually defensible. It goes on to clarify two senses in which Rousseau's understanding of consent serves to ground the rights of the guilty. First, it argues that the idea of consent itself legitimizes some punishment but also sets strict limits on when and how the state can punish. Second, it argues that Rousseau's account of welfare rights also sets a limit on when the state may rightfully punish. The final two sections of the chapter consider the role of punishment outside the social contract in Rousseau's theory and suggest an important contrast between Rousseau's and Hobbes's conceptions of punishment. (shrink)

There are two opposing views on the nature of corporations in contemporary debates on corporate social responsibility. Opponents of corporate personhood hold that a corporation is nothing but a group of individuals coming together to achieve certain goals. On the other hand, the advocates of corporate personhood believe that corporations are persons in their own right existing over and above the individuals who comprise them. They talk of corporate decision-making structures that help translate individual decisions and actions into corporate decisions (...) and actions. Importantly both the advocates and the opponents of corporate personhood rely on a contractual model of corporate–social interaction to explain corporate social responsibilty. However, this contractual model misses crucial aspects of the relationship between corporations and societies. Economic history reveals that the relationship between corporations and societies is essentially dynamic and heterogeneous and so extremely difficult to characterise in terms of a contract. The economic and the political aspects of this relationship are so finely intertwined with each other and it is impossible to extricate the one from the other. We need to be more conscious of the actual nature of corporate–social interaction in order to deal more comprehensively with issues of corporate social responsibility. (shrink)

JOHN RAWLS IN A Theory of Justice attempts to deduce "the principles of justice" from the idea of a "contract" among free and equal persons. The factor which obviously distinguishes Rawls’ contract doctrine from the teachings of the great social contract philosophers who preceded him is that it does not rest on any examination of what the character of an actual nonpolitical condition or "state of nature" among men would be. Rawls’ procedure is in fact (...) the opposite of that followed by his predecessors: instead of inferring the principles of the contract from what men, given their nature, would be likely to agree upon in the absence of an already existing government and set of laws, he freely constructs the character and circumstances of the parties to his "purely hypothetical" "original position of equality" in order "to lead to a certain conception of justice". That conception is to consist of. (shrink)

First published in 1987. The theory that political obligation and authority are derived from the consent of citizens is commonly accepted in the history of Western political thought. It is expressed in the famous assertion of the American Declaration of Independence that governments derive 'their just powers from the consent of the governed' and in the constitutions of some Western powers. This book provides the first systematic and comprehensive restatement and defence of consent theory since the 19th Century. (...) It distinguishes consent from contract theory, examines what the actual consent of citizens can consist in and what place it must have in liberal democratic theory. The consent theory's relationship with ethics is explored and the major objections to the theory are countered. The author points to some political reforms which would increase the proportion of citizens in liberal democracies whose consent places them under political obligation. The book provides an overview of the current state of the consent theory of political obligation and authority. (shrink)

On October 5th, 2017, the New York Times published an article that would establish the #MeToo movement and help millions of women across the globe to raise their voice and share their stories of sexual harassment, aggression and/or violence. If Harvey Weinstein was the main accused, he was, actually, the epitome of a systemic, as well as an endemic, issue that didn’t stop at the studios’ doors and was made possible thanks to a rather surprising and quite unexpected accomplice. In (...) fact, “Hollywood’s open secret” has been well-guarded by, among other things, the contract and its law. In the eyes of a contract law specialist, whether it be a man or a woman, the major highlight of Jodi Kantor and Megan Twohey’s article rests in their ability to have brought to light contracts—the, now, infamous and highly criticised “NDAs” (non-disclosure agreements)—that ensured Weinstein the freedom to buy his victims’ silence. The first goal of this essay is trying to understand, on the one hand, how could that be possible and, on the other hand, explain to a larger audience how a tool usually used for economic and commercial purposes could have been diverted from its traditional use. It also aims to present measures that have been adopted in the United States to fight these agreements, and imagine what could they be in a country such as France. Although these types of “NDAs” don’t seem to find their equivalent in the French public sphere, it is still helpful to ponder over remedies offered by the new French law of contract shall these contracts ever come to exist… or arise. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Theory of International Bioethics: The Negotiable and the Non-NegotiableRobert Baker (bio)AbstractThe preceding article in this issue of the Kennedy Institute of Ethics Journal presents the argument that “moral fundamentalism,” the position that international bioethics rests on “basic” or “fundamental” moral principles that are universally accepted in all eras and cultures, collapses under a variety of multicultural and postmodern critiques. The present article looks to the contractarian tradition (...) of Hobbes and Locke—as reinterpreted by David Gauthier, Robert Nozick, and John Rawls—for an alternative justification for international bioethics. Drawing on the central themes of this tradition, it is argued that international bioethics can be rationally reconstructed as a negotiated moral order that respects culturally and individually defined areas of nonnegotiability. Further, the theory of a negotiated moral order is consistent with traditional ideals about human rights, is flexible enough to absorb the genuine insights of multiculturalism and postmodernism, and yet is strong enough to justify transcultural and transtemporal moral judgments, including the condemnation of the Nazi doctors at Nuremberg. This theory also is consistent with the history of the ethics of human subjects experimentation and offers insights into current controversies such as the controversy over changing the consent rule for experiments in emergency medicine and the controversy over exempting certain clinical trials of inexpensive treatments for preventing the perinatal transmission of AIDS from the ethical standards of the sponsoring country.The Preamble to the Council of Europe’s (1997) Convention on Human Rights and Biomedicine, the most recently ratified code of international bioethics, is noteworthy because it never mentions “principles,” the concept most frequently cited by the fundamentalists as basic to international bioethics. Instead it stresses rights, a concept that has been utterly ignored by the fundamentalist theorists of international bioethics. The Preamble exemplifies a conception of international [End Page 233] bioethics as an ethics of covenants and conventions grounded in human rights. In the full text of the Preamble, the term “rights” appears eight times and the expressions “convention” and “covenant” are used six times; the term “principle” does not appear at all. In this essay, I develop a theoretical framework for international bioethics based on conventions, covenants, and areas of “nonnegotiability”—a concept that serves as a functional analogue to the traditional notion of “human rights.” I also shall argue that, unlike the theory of basic principles central to moral fundamentalism, the theory of negotiated morality appears immune to the multicultural and postmodern critiques of international bioethics that were analyzed in the preceding article in this issue of the Kennedy Institute of Ethics Journal (Baker 1998).Negotiated Moral Order: A Model for International BioethicsReconsidering ContractarianismThe linkage of “conventions” and “covenants” with human rights that is evident in the Council of Europe’s Convention on Human Rights and Biomedicine traces back directly to the moral and political theories of Thomas Hobbes and John Locke. Such philosophers as David Gauthier (1986), Robert Nozick (1974), and John Rawls (1971, 1993) recently have reinvigorated this classic contractarian line of analysis. In this section, I shall reconsider classical contractarian theory from a perspective informed by these more recent analyses.The most riveting feature of all forms of contractarian theory is the metaphor of the contract itself, particularly the legitimating role it accords to assent. Because contractarians look to the assent of those who would be bound by a moral norm as ultimately the sole source of a norm’s legitimacy, the most important corollary of contractarian moral theory is that moral norms are illegitimate insofar as agents either in principle could not, hypothetically would not, or actually will not rationally assent to be bound by them. Contractarians also argue that because legal norms are legitimated by acceptance of the authority of those who promulgate them, the authority of such norms is bounded by the actual or hypothetical assent of the governed. These features of contractarian analysis generate the correlative concepts of human rights and civil rights.Less often remarked, but nonetheless integral to the metaphor of the social contract, is the contractarian recognition that the interests of the [End Page 234] parties who contract to form civil society are naturally in conflict (or, as Hobbes put... (shrink)

Although moral hazard is a well-known economic concept, there is a long-standing controversy over its moral implications. The language economists use to describe moral hazard is often value-laden, and implies moral judgments about the persons or actions of economic agents. This in turn leads some to question whether it is actually a scientific concept, or simply a convenient tool for criticizing certain public policies. At present, there is no consensus about the moral meaning of moral hazard, or about whether the (...) concept can be salvaged by economists. As a first step toward resolving this problem, I suggest a contracts approach to moral hazard. I use the ‘title-transfer’ theory of contract to clarify the moral content of moral hazard, thereby increasing its value to scholars in numerous disciplines. A contracts view is useful for economic policy discussions because it does not include hidden value judgments. At the same time, however, it is also valuable for ethicists because it directly explains a moral dimension of behavior under moral hazard, namely, the violation of property rights. (shrink)

The works of Sade portray the corrupt and libertine practices at the time of Louis XV's despotic regime, invariably referring to the boudoir as a privileged place for the transformation of mind and body as well as for philosophical production. The actuality of Sade's thought lies in the fact that he reveals - as do modem trends - the narcissic constitution of subjectivity that, in its social-political aspect, leads to political conformism. This article aims at presenting Sade's thought as a (...) radical critique of social relationships, which lead to the rupture of Rousseau's social contract. His relentless doctrine becomes negative philosophy in that it supplies the foundations for the critique of instrumental reason. A pessimist regarding the course of social totality, Sade's theory points to human 'animality' as a possible means of transcending the artificiality of social relationships.As obras de Sade procuram retratar as práticas corruptas e libertinas presentes no regime despótico de Luís XV, apontando invariavelmente a "alcova" como lugar privilegiado de transformação do corpo e da mente e, ao mesmo tempo, de produção filosófica. A atualidade do pensamento de Sade revela-se no fato de colocar como tendencia da modernidade, a constituição narcísica da subjetividade que, em sua variante político-social, aparece sob a forma do conformismo político. Este artigo pretende apresentar o pensamento de Sade como urna crítica aos liames sociais, o que conduz à ruptura da idéia de pacto social formulada por Rousseau. A doutrina sem compaixão de Sade torna-se filosofia negativa na medida em que fornece os fundamentos da crítica à razão instrumental. Sendo pessimista quanto aos rumos do existente, a teoria sadiana aponta a "animalidade" humana como possibilidade de transcendencia da artificialidade dos laços sociais. (shrink)

Application of Einstein special theory of relativity in chemistry seems to be superfluous; energies are too low. The average velocity of electron in hydrogen atom is 1/135 c, making its actual mass only 26,6 ppm bigger than the rest mass. However, for heavier elements relativistic effects have to be taken into account and, more, many phenomena cannot be explained without ascribing new mass to electrons, in accordance with Einstein theory. In this paper such phenomena are described: color (...) of metallic gold and Bi and Pb compounds, contraction of Ln-X bond of lanthanide trihalides, voltage of lead-acid and Zn/HgO battery, and the shape of gold clusters. Besides, essentials of Einstein theory and quantum chemistry were problems concerning the validity of Lavoisier law. (shrink)

In _War By Agreement_, Yitzhak Benbaji and Daniel Statman argue that the morality of war can be governed by a freely accepted agreement over the principles that apply to it. This war contract supersedes the application of the principles of everyday morality to war, thus defying ‘revisionist’ approaches to war, and it upholds a recognizable version of traditional just war theory. This article argues for three claims. First, the contractarian apparatus Benbaji and Statman deploy is actually inconsistent with (...) the deep reasoning they advance on its behalf, since, unsatisfactorily, the contract is supposed to retain normative force even when it is breached by aggressors. Second, the underlying character of their theory makes it something closer to a consequentialist account. Third, this new understanding of their account renders it less distinct from certain articulations of revisionism than they think. (shrink)

In spite of feminist recognition that hierarchical organizations are an important location of male dominance, most feminists writing about organizations assume that organizational structure is gender neutral. This article argues that organizational structure is not gender neutral; on the contrary, assumptions about gender underlie the documents and contracts used to construct organizations and to provide the commonsense ground for theorizing about them. Their gendered nature is partly masked through obscuring the embodied nature of work.jobs and hierarchies, common concepts in organizational (...) thinking, assume a disembodies and universal worker. This worker is actually a man; men's bodies, sexuality, and relationships to procreation and paid work are subsumed in the image of the worker. Images of men's bodies and masculinity pervade organizational processes, marginalizing women and contributing to the maintenance of gender segregation in organizations. The positing of gender-neutral and disembodied organizational structures and work relations is part of the larger strategy of control in industrial capitalist societies, which, at least partly, are built upon a deeply embedded substructure of gender difference. (shrink)

Panarchy is a normative political meta-theory that advocates non-territorial states founded on actual social contracts that are explicitly negotiated and signed between states and their prospective citizens. The explicit social contract, or a constitution, sets the terms under which a state may use coercion against its citizens and the conditions under which the contract may be annulled, revised, rescinded, or otherwise exited from. Panarchy does not advocate any particular model of the state or social justice, but (...) intends to encourage political variety, innovation, experimentation, and choice. With its emphasis on explicit social contracts, Panarchy offers an interesting variation on traditional social contract theories. Today, Panarchist political thought is particularly relevant and interesting in the context of globalization, increased international migration, the weakening of national sovereignty, the rise of the internet "cloud" as a non-territorial locus of political and protopolitical social networks that are not geographic, the invention of cryptocurrencies that may replace national currencies, and the rise of urban centers where people of many different political identities live and work together. This is the first volume to bring together key philosophically and politically interesting yet often overlooked Panarchist texts. From the first published translation of de Puydt seminal 1860 article to contemporary Silicon Valley political theory, the volume includes Panarchist texts from different eras, cultures and geographical regions. The amassed wealth of theoretical insight enables readers to compare different texts in this tradition of political thought and distinguish different streams and varieties within this political tradition, in comparison with Cosmopolitanism, Contractarianism, and Anarchism. (shrink)

Very diverse societies pose real problems for Rawlsian models of public reason. This is for two reasons: first, public reason is unable accommodate diverse perspectives in determining a regulative ideal. Second, regulative ideals are unable to respond to social change. While models based on public reason focus on the justification of principles, this book suggests that we need to orient our normative theories more toward discovery and experimentation. The book develops a unique approach to social contract theory that (...) focuses on diverse perspectives. It offers a new moral stance that author Ryan Muldoon calls, "The View From Everywhere," which allows for substantive, fundamental moral disagreement. This stance is used to develop a bargaining model in which agents can cooperate despite seeing different perspectives. Rather than arguing for an ideal contract or particular principles of justice, Muldoon outlines a procedure for iterated revisions to the rules of a social contract. It expands Mill's conception of experiments in living to help form a foundational principle for social contract theory. By embracing this kind of experimentation, we move away from a conception of justice as an end state, and toward a conception of justice as a trajectory. (shrink)

The problem of how mathematics and physics are related at a foundational level is of interest. The approach taken here is to work towards a coherent theory of physics and mathematics together by examining the theory experiment connection. The role of an implied theory hierarchy and use of computers in comparing theory and experiment is described. The main idea of the paper is to tighten the theory experiment connection by bringing physical theories, as mathematical structures (...) over C, the complex numbers, closer to what is actually done in experimental measurements and computations. The method replaces C by C n which is the set of pairs, R n,I n, of n figure rational numbers in some basis. The properties of these numbers are based on those of numerical measurement outcomes for continuous variables. A model of space and time based on R n is discussed. The model is scale invariant with regions of constant step size interrupted by exponential jumps. A method of taking the limit n→∞ to obtain locally flat continuum-based space and time is outlined. Also R n based space is invariant under scale transformations. These correspond to expansion and contraction of space relative to a flat background. The location of the origin, which is a space and time singularity, does not change under these transformations. Some properties of quantum mechanics, based on C n and on R n space are briefly investigated. (shrink)

This paper relates Donaldson and Dunfee’s Integrative Social Contracts Theory to the problem of gender discrimination. We make the assumption that multinational managers might seek some guidance from ISCT to resolve ethical issues of gender discrimination in countries indifferent or hostile to gender equaIity. The role of Donaldson and Dunfee’s “hypernorms” seems especially cruciaI, and we find that, under their writings thus far, no “hypernorms” exist to make unethical the most blatant acts of sex discrimination in a host country (...) whose local norms tolerate such discrimination. The genesis of “hypernorms” as “global moral minimums” is recounted, and specific application of ISCT to a familiar ethics case (“A Foreign Assignment”) is provided. (shrink)

This book argues that moral philosophy should be based on seven scientific principles of theory selection. It then argues that a new moral theory—Rightness as Fairness—satisfies those principles more successfully than existing theories. Chapter 1 explicates the seven principles of theory-selection, arguing that moral philosophy must conform to them to be truth-apt. Chapter 2 argues those principles jointly support founding moral philosophy in known facts of empirical moral psychology: specifically, our capacities for mental time-travel and modal imagination. (...) Chapter 2 then shows that these capacities present human decisionmakers with a problem of diachronic rationality that includes but generalizes beyond, L.A. Paul’s problem of transformative experience: a problem that I call “the problem of possible future selves.” Chapter 3 then argues that a new principle of rationality—the Categorical-Instrumental Imperative—is the only rational solution to this problem, as it requires our present and future selves to forge and uphold a recursive, bi-directional contract with each another given mutual recognition of the problem. Chapter 4 then shows that the Categorical-Instrumental Imperative has three identical formulations analogous but superior to Immanuel Kant’s various formulations of his ‘categorical imperative.’ Chapter 5 shows that these unified formulas jointly entail a particular test of moral principles: a Moral Original Position similar to John Rawls’ famous ‘original position’, but which avoids a variety of problems with Rawls' model. Chapter 6 then shows that the Moral Original Position generates Four Principles of Fairness, which can then be combined into a single principle of moral rightness: Rightness as Fairness. This new conception of rightness is shown to reconcile four dominant moral frameworks (deontology, consequentialism, virtue ethics, and contractualism), as well as entail a new method of moral decisionmaking for applied ethics: a method of “principled fair negotiation” according to which applied ethical issues cannot be wholly resolved through principled debate, but must instead be resolved by actual negotiation and compromise. This method is then argued to generate novel, nuanced analyses of a variety of applied moral issues, including trolley cases, torture, and the ethical treatment of nonhuman animals. Chapter 7 then shows that Rightness as Fairness reconciles three leading political frameworks—libertarianism, egalitarianism, and communitarianism—showing how all three embody legitimate moral ideals that can, and should, be fairly negotiated against each other to settle the scope, and nature, of domestic, international, and global justice on an ongoing, iterated basis. Finally, Chapter 8 argues that Rightness as Fairness satisfies all seven of the principles of theory-selected defended in Chapter 1 more successfully than rival theories. (shrink)

This chapter contains section titled: Introduction Welfarism: Law and Economics Nonwelfarist theories Historical Explanations Topics in Contract Theory Conclusion: Whither Contract Theory? References.

_Contract Theory_ examines the logical and conceptual structures that arise in the process of making, honoring, and enforcing contracts. The touchstone of Anglo-American contract law is the determination of contractual intent. Two theories have competed for center stage: the subjective theory of the "meeting of the minds" and the objective theory in which the parties' manifestations and the transaction's contextual factors became the means for contract interpretation and enforcement. The implementation of the objective theory of (...) contract is the "reasonable person standard." Larry DiMatteo focuses on the development, construction, and application of the reasonable person standard. He undertakes a study of the origins of the reasonable person in the disciplines of philosophy, theology, and psychology and concludes with an examination of the interplay between this objective standard and the subjectivity of judgment. The importance of the synthesis of the objective and subjective elements of contracts is crucial for a complete understanding of contract law. (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)

Over the last 20 years, a paternalistic view in health care has been losing ground. The question about less asymmetrical positions in the healthcare professional–patient relationship is, for example, being addressed by the increased emphasis on person‐centred care, promoted in disciplines such as medicine and nursing. Partnership is considered as a key component in person‐centred care. Although the previous studies have addressed the attributes inherent in partnership, there is still potential for further discussion on how the various interpretations of partnership (...) influence their use in healthcare literature. A vague understanding might also affect education and evaluation. As we see it, the philosophical underpinnings of the idea of partnership have not been sufficiently explored and discussed. The study reveals that partnership originates in the term “partener” defined as a relationship between individuals or groups characterized by cooperation and responsibility. Etymologically speaking, partnership is hence bound by a contract, which in this study is discussed in the frame of Rawls’ contract theory, which in turn intersects with Benhabib and her distinction between “the abstract” and “the concrete Other.” Further, the expression “equal partnership,” which often appears in the context of person‐centredness, is explored in relation to the philosophies of Rawls and Benhabib. The opportunity for partnership, as well as the risk of partnership becoming a tempting magnet with a vague and imprecise meaning, is discussed. Without exploration, reflection and discussion of the philosophical underpinnings, partnership carries a substantial risk of becoming an indistinct idea used in health care. (shrink)

Although people establish norms that enable them to live together, some of these have to be coupled with a system of enforcement. This conforms to broad social contract theory and can also be applied to the international sphere. The international community is also based on a system of norms. However, unlike the domestic context, there is no overreaching authority to direct states on what they should do. Rather it is left to states themselves to police this framework. However, (...) this has resulted in one of the conditions envisaged by social contract theorists, namely a stasis between the command order and the state of nature. This may explain, for instance, the indifference to some modern human rights violations. Hence the current system of International law, with its insistence on the Westphalian principle of equality of states has caused a substantial fracture in the enforcement of international law, particularly when it comes to serious human rights breaches, and caused something akin to the state of nature envisaged by social contract theorists. While it may be practically impossible to provide a command system in the international sphere similar to the one in the domestic life, there is some hope that a revised deontological ethic founded on global integration may provide one impetus for change. (shrink)

: Decisions about funding health services are crucial to controlling costs in health care insurance plans, yet they encounter serious challenges from intellectual property protection—e.g., patents—of health care services. Using Myriad Genetics' commercial genetic susceptibility test for hereditary breast cancer (BRCA testing) in the context of the Canadian health insurance system as a case study, this paper applies concepts from social contract theory to help develop more just and rational approaches to health care decision making. Specifically, Daniels's and (...) Sabin's "accountability for reasonableness" is compared to broader notions of public consultation, demonstrating that expert assessments in specific decisions must be transparent and accountable and supplemented by public consultation. (shrink)

I argue that social-contract theory cannot succeed because reasonable people may always disagree, and that social-contract theory is irrelevant to the problem of the legitimacy of a form of government or of a system of moral rules. I note the weakness of the appeal to implicit agreement, the conflation of legitimacy with stability, the undesirability of “public justification” and the apparent blindness to the evolutionary critical-rationalist approach of Hayek and Popper. I employ that approach to sketch (...) answers to the theoretical, historical and practical questions about the legitimacy of government or of systems of moral rules. (shrink)

We critically assess integrative social contracts theory (ISCT) and show that the concept particularly lacks of moral justification of substantive hypernorms. By drawing on Habermasian philosophy, in particular discourse ethics and its recent application in the theory of deliberative democracy , we further advance ISCT and show that social contracting in business ethics requires a well-justified procedural rather than a substantive focus for managing stakeholder relations. We also replace the monological concept of hypothetical thought experiments in ISCT by (...) a concept of practical discourse to better govern business activities on the macro-level of organizational actors such as firms, governments, and NGOs. (shrink)

Business and Society Review, Volume 126, Issue 1, Page 3-23, Spring 2021.