Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that legal coercion fails to respect individuals as reason-responsive agents; and individuals ought to be respected as (...) such in virtue of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’. (shrink)

¿Qué tipo de agencia es necesaria para la personalidad jurídica? ¿Cuáles son los requisitos cognitivos y racionales que los sistemas legales asumen acerca de los sujetos de la ley? ¿Cómo es que los seres humanos cumplen con estos requisitos? En trabajo previo (Cáceres y Montemayor, 2016), hemos argumentado que estas preguntas requieren un nuevo acercamiento a la teoría del derecho, basado en hallazgos recientes en ciencia cognitiva, que van más allá de tratamientos teóricos neuro-legales contemporáneos. Aquí construimos sobre esta propuesta, (...) ahora enfocándonos en cuestiones de agencia y normatividad, incluyendo tipos de agencia que son relevantes para la epistemología social. La conclusión principal del artículo es que los muy estrictos requisitos cognitivos que se asumen sobre las capacidades explícitas de racionalidad de los agentes cognitivos, presupuestos por la ley, no sólo son incompatibles con los hallazgos en psicología, sino que un análisis sistemático de la agencia moral y epistémica también es necesario para poder entender la normatividad legal. El argumento principal es que tipos de agencia colectiva, moral y epistémica, difieren de la agencia individual, la cual también debe distinguirse como moral y epistémica. Fundamentalmente, la agencia colectiva difiere de la individual no sólo con base en diferencias con respecto a la racionalidad, sino también con base en los criterios de integración informativa. Varias consecuencias de este análisis son evaluadas, incluyendo aspectos concernientes a integración informativa para juicios y decisiones, comunicación fiable para la agencia epistémica, y la integración de consideraciones morales en el razonamiento jurídico. Una revisión comprensiva de la noción de “autonomía” es justificada por esta propuesta, en parte porque los requisitos comunes para la personalidad y autonomía jurídica son muy demandantes e inadecuados en muchos casos, y en parte porque la agencia colectiva debe tomarse en consideración como un tipo fundamental de agencia legal responsable para procesos de integración informativa. Basándonos en la distinción entre formas epistémicas y morales de razonamiento, explicamos cómo los sistemas legales necesitan de altos niveles de integración cognitiva para la responsabilidad legal a nivel colectivo. (shrink)

The recognition of animal sentience in law has created high expectations but has not yet lived up to them. In some jurisdictions, the recognition of animal sentience has formed the basis of new legal obligations imposed on humans to protect animal interests. So far, however, its potential has been limited because legal officials have interpreted sentience narrowly, as mainly referring to pain. This article proposes identifying other animal characteristics to better serve animal interests, namely sociability and agency. (...) These animal characteristics could, like sentience, be legally recognized by legislatures and receive normative force from the courts. This article argues that the legal recognition of sociability and agency could address animal exploitation and killing. Animal sociability and agency are already implicitly recognized by the law of most Western states, making it easier for them to be explicitly recognized in the future. Although these characteristics are already found in the law, they have the potential to be more disruptive than sentience because they have never served as the basis for the legal protection of animals. In other words, their potential as protective tools remains underexplored and underexploited. Moreover, sociability and agency more intuitively suggest normative implications because of their demanding nature. Acknowledging that a being is social and agential implies recognizing her need for social relationships and ensuring that her choices are fulfilled. This research article provides antispeciesist scholars and activists with a critical overview of new concepts around which some may wish to rally, particularly since the legal recognition of sentience has shown limits in multiple jurisdictions. This article explores the potential of legally recognizing sociability and agency by taking examples from the lives of dogs, cows, cats, horses, northern gannets, and dolphins. (shrink)

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of (...) law and human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address. (shrink)

An account of the ontological nature of collectives would be useful for several reasons. A successful theory would help to show us a route through the thicket of views known as “methodological individualism”. It would have a bearing on the plausibility of legal positivism. It would be relevant to the question whether collectives are capable of acting. The debate about the ontology of collectives is therefore important for such fields as the theory of action, social and political philosophy, the (...) philosophy of law and the philosophy of social science. I hope to contribute to the debate by proposing an account of collectives, and by showing its theoretical soundness and utility. In its essentials, my proposal is that collectives are “mereological sums” of “stages” of persons linked by a “unity relation”. The influence on this account of some theories of personal identity will perhaps be obvious. But the motivation is different, for it lies at least as much in the ability of the theory to help us deal with the issues already mentioned as in problems concerning the identity of collectives over time. I acknowledge that my proposal is not commonsensical; however, I believe that no account could be both commonsensical and adequate. I will begin by introducing some constraints on a theory of collectives. (shrink)

The aim of this exploratory paper is to review an under-appreciated parallel between group agency and artificial intelligence. As both phenomena involve non-human goal-directed agents that can make a difference to the social world, they raise some similar moral and regulatory challenges, which require us to rethink some of our anthropocentric moral assumptions. Are humans always responsible for those entities’ actions, or could the entities bear responsibility themselves? Could the entities engage in normative reasoning? Could they even have rights (...) and a moral status? I will tentatively defend the (increasingly widely held) view that, under certain conditions, artificial intelligent systems, like corporate entities, might qualify as responsible moral agents and as holders of limited rights and legal personhood. I will further suggest that regulators should permit the use of autonomous artificial systems in high-stakes settings only if they are engineered to function as moral (not just intentional) agents and/or there is some liability-transfer arrangement in place. I will finally raise the possibility that if artificial systems ever became phenomenally conscious, there might be a case for extending a stronger moral status to them, but argue that, as of now, this remains very hypothetical. (shrink)

In both popular and scholarly discussions, sexual consent is gaining traction as the central moral consideration in how people should treat one another in sexual encounters. However, while the concept of consent has been indispensable to oppose many forms of sexual violence, consent-based sexual ethics struggle to account for the phenomenological complexity of sexual intimacy and the social and structural pressures that often surround sexual communication and behavior. Feminist structural critique and social research on the prevalence of violation even within (...) consensual sex suggest that consent is insufficient to ground responsibility; a more fundamental orientation toward the value of sexual agency provides a better foundation for sexual ethics. Using feminist critical theory, phenomenology, and black feminist thought, this dissertation develops a socially situated and relational notion of sexual agency and diagnoses how such agency is neglected in prevailing discussions of consent in moral philosophy and legal theory. I argue that the ethical question of responsibility to another in a sexual encounter—apart from juridical considerations—should be reframed around the value of each person’s socially situated practices of agency. Preceding and extending beyond the obligation to gain valid consent for an action, responsibility demands adapting one’s intentions and behaviors in response to the wider range of another’s communicative expressions of agency. However, communicative expressions can be ambiguous or overdetermined by social context and cultural norms; they often offer only provisional traces of agency. To address this inherent uncertainty in intimacy, I propose drawing on insights from Emmanuel Levinas about the dynamic, open-ended nature of relationality, responsibility, and communication. Responsibility toward another does not depend on securing certainty about their “yes” or “no,” but requires responding continuously under conditions of uncertainty and ambiguity, adapting behaviors and intentions to make room for another’s agency despite its opacity. (shrink)

We have argued elsewhere that moral responsibility over time depends in part upon the having of psychological connections which facilitate forms of self-control. In this chapter we explore the importance of mental time travel - our ordinary ability to mentally travel to temporal locations outside the present, involving both memory of our personal past and the ability to imagine ourselves in the future - to our agential capacities for planning and control. We suggest that in many individuals with dissociative disorders, (...) forms of amnesia, or other frontal lobe damage, our capacity for mental time travel is impaired, resulting in commensurate losses to agency autonomy, and a forensic condition essential for holding persons responsible: in legal terms, the capacity for mens rea. (shrink)

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the (...) content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very (...) likely to lack substantial capacities necessary to be law-abiding. Our analysis supports the Model Penal Code test for legal insanity over the traditional M’Naghten test, because the Model Penal Code test allows either severely diminished cognitive or volitional capacities to warrant an excuse to criminal culpability. We will provide a nuanced account of the ways in which mental illness can erode executive function, as well as an explanation as to why severe diminishment of executive functions caused by mental illness, but not some other causes, is exculpatory. (shrink)

Applying evidence from recently available public information on Enron, I defined Enron’s culture as one rooted in agency theory by asserting that Enron’s members were predominantly agency-reasoning individuals. I then identified conditions present at Enron’s collapse: a strong agency culture with collectively non-compliant norms, a munificent rare-failure environment, and new hires with little business ethics training. Turning to four possible antidotes (selection, objectivist integrity, integrity capacity, and stewardship reasoning) to an agency culture under these conditions, I (...) argued that the currently available ethics literature would have made little difference toward averting Enron’s collapse if any of the recommendations from the relevant ethics literature had been implemented. I conclude by identifying new directions for business ethics literature in order to make it more implementable under the conditions identified at Enron. Essentially, we need a way to clearly determine (1) the difference between connivance and commitment, (2) what is meant by balance with regard to the multiple dimensions of ethics and legal theories, and (3) the proper balance between agency and stewardship reasoning. (shrink)

We propose a refinement of STIT logic to make it suitable to model causal agency and responsibility in basic multi-agent scenarios in which agents can interfere with one another. We do this by supplementing STIT semantics, first, with action types and, second, with a relation of opposing between action types. We exploit these novel elements to represent a test for potential causation, based on an intuitive notion of expected result of an action, and two tests for actual causation from (...) the legal literature, i.e. the but-for and the NESS tests. We then introduce three new STIT operators modeling corresponding notions of causal responsibility, which we call potential, strong, and plain responsibility, and use them to provide a fine-grained analysis of a number of case studies involving both individual agents and groups. (shrink)

Metaphors are common in legal discourse because they reify abstract legal concepts. The game metaphor, sometimes used to characterise legal trials, tends to be associated with legal professionals’ work in court. This metaphor portrays a legal trial as a competitive, hostile and masculine process that excludes victims from participating in the trial. In this article, I analyse interviews with victims of rape who have had their case prosecuted in the courts in Norway. The victims use (...) the game metaphor to characterise both the trial and their participation in it. I investigate how the game metaphor adds meaning to rape victims’ understanding and experience of a legal trial and creates room for agency in relation to the prosecution of their rape case. (shrink)

In this article I will look into Corporate Legal Responsibility taking into account Levinas’s notion of infinite responsibility, as well as his understanding of ethical language. My account of Levinas’s philosophy will show that it challenges – breaking down – deeply entrenched distinctions in the dominant strands of moral philosophy, within which the theory of individual responsibility is embedded, such as between:(1) duty to others on the one hand and supererogation on the other; (2) perfect duty to others on (...) the one hand and imperfect duties to others on the other; (3) insiders and outsiders; kith and kin on the one hand and strangers on the other; Levinas’s moral vision is an inclusive one which embraces all of humanity (at least of those present today) irrespective of historical, linguistic, cultural differences and diversities. In other words, each has responsibilities for and duties towards all others. Of course, one might say that there is nothing new about a universalising ethics – after all Kantianism, liberalism as well as utilitarianism are well known instances. However, more crucially, all these traditional moral philosophies uphold the theory of individual responsibility, which is rooted in the philosophy of individualism. Such a philosophy can make sense only of the concept of individual moral/legal agency but not corporate agency. Therefore, in this article I will attempt to show that the Levinasian vision is able to help us change our view with respect to corporate responsibility. (shrink)

The objective of this paper is to present a legal theory of agency selection. The theory posits why certain legal forms of agency are chosen when agencies are created by the executive branch of government. At the core of the theory is the idea that the executive branch chooses agency forms that strike a politically optimal balance between maximising its control while minimising its legal and political accountability for agency activities. This optimal balance (...) is determined on an issue by issue basis. As such, the rise of the regulatory state has provided a means by which the executive branch of government has been able to strategically choose to divest itself of and minimise its legal accountability for the administration of government while, at the same time, maintaining effective political control of the administrative arm of government. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of organizing social (...) and economic life among a group of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

Proxy agency is the capacity of individuals and groups to act for other individuals or groups in specific social transactions. For example, a legal team acts as a proxy for a client in a courtroom, or the Prime Minister acts as a proxy for the UK Government when attending international meetings, etc. Although a very common social phenomenon, it has not yet received enough philosophical treatment. Currently, the most developed account of this capacity is Ludwig’s proxy agency (...) in collective action. Yet, his account relies on a deflationary, we-content approach to collective intentionality (á la Bratman). In this chapter, I argue that this approach is far too weak to explain proxy agency in institutional contexts—where the individuals and groups formally authorised to perform rule-guided group activities for the principal hold a strong, non-conditional we-commitment. In order to elucidate this feature, I provide an account of proxy agency based on a more robust, we-mode approach to collective intentionality (á la Tuomela). I suggest with this that, for institutional proxy agency to operate as expected, there must be appropriate conditions of sociality in place—which ultimately coheres with the larger project developed by Tuomela on social ontology. (shrink)

The objective of this work is to explore the notion of “action” and “agency” in artificial intelligence (AI). It employs a metaphysical notion of action and agency as an epistemological tool in the critique of the notion of “action” and “agency” in artificial intelligence. Hence, both a metaphysical and cognitive analysis is employed in the investigation of the quiddity and nature of action and agency per se, and how they are, by extension employed in the language (...) and science of artificial intelligence. The advent of the science of artificial intelligence and cognitive science, and the technological applications of artificial intelligence in the production of agents such as driverless cars and expert systems, have raised the question of moral, ethical and/or legal responsibility in AI agents. This has re-emphasized the importance of the philosophical discourse on the notions of action and agency, which in contemporary intellectual discourse are now perceived to be phenomena within the epistemic competence of the natural sciences. This paper argues that AI systems do not and cannot possess free agency and autonomy, thus cannot be morally and ethically responsible, hence, it recommends a socio-political response to the question of responsibility in AI. It is then the duty of individual nations, or the global community to define and enact policies on who shoulders the responsibility of actions executed by AIs. (shrink)

This essay examines the goals of care and the exercise of guardianship authority in the long-term care of persons with Alzheimer's disease and other forms of chronic, progressive dementia. It counters philosophical views that deny both agency and personhood to individuals with Alzheimer's on definitional or analytic conceptual grounds. It develops a specific conception of the quality of life and offers a critique of hedonic conceptions of quality of life and models of guardianship that are based on a hedonic (...) legal standard of “best interests.” As an alternative, it proposes a conception of quality of life based on the notions of “semantic agency” and “memorial personhood.”. (shrink)

This book provides extensive and critical engagement with some of the most recent and compelling arguments favoring abortion choice. It features original essays from leading and emerging philosophers, bioethicists and medical professionals that present philosophically sophisticated and novel arguments against abortion choice. The chapters in this book are divided into three thematic sections. The first set of essays focuses primarily on unborn human individuals--zygotes, embryos and fetuses. In these chapters it is argued, for example, that human organisms begin to exist (...) at conception and that zygotes, embryos and fetuses are persons. These chapters also explore questions about whether or not zygotes, embryos and fetuses are part of their mothers' bodies. The second set of essays focuses primarily on elective abortion and the debates surrounding it. These chapters consider whether or not opponents of abortion are commonly hypocritical, how opponents of abortion should think about adoption, how emerging technologies may affect the current debate and whether or not those participating in the debate should rely on analogies to support their case. Finally, the third set of essays shifts focus from the legal and moral status of elective abortion to its place in medical practice. In these chapters it is argued that elective abortion embodies a kind of ableism, and that elective abortion is medically unnecessary, harmful to women's mental health and that telemedicine abortion poses significant risks to women's health. Agency, Pregnancy and Persons offers an up-to-date examination of unborn human beings, the debates surrounding elective abortion and the place of elective abortion within medical practice. It will be of interest to medical professionals and those who work in philosophy, bioethics and medical ethics alike. (shrink)

For centuries in the UK and elsewhere, charities have been widely regarded as admirable and virtuous organisations. Business corporations, by contrast, have been characterised in the popular imagination as entities that lack a capacity for moral judgement. Drawing on the philosophical literature on the moral agency of organisations, we examine how the law shapes the ability of charities and business corporations headquartered in England to exercise moral agency. Paradoxically, we find that charities are legally constrained in exercising moral (...) agency in ways in which business corporations are not. Implications for charities and business corporations are then explored. (shrink)

The paper reconstructs in economic terms Friedman's theorem that the only social responsibility of firms is to increase their profits while staying within legal and ethical rules. A model of three levels of moral conduct is attributed to the firm: (1) self-interested engagement in the market process itself, which reflects according to classical and neoclassical economics an ethical ideal; (2) the obeying of the "rules of the game," largely legal ones; and (3) the creation of ethical capital, which (...) allows moral conduct to enter the market process beyond the rules of the game. Points (1) and (2) position the Friedman theorem in economic terms while point (3) develops an economic revision of the theorem, which was not seen by Friedman. Implications are spelled out for an instrumental stakeholder theory of the firm. (shrink)

Public deliberation, highly valued by many African societies, becomes the cornerstone of a new system of African political philosophy in this brilliant, highly original study. In Deliberative Agency, philosopher Uchenna Okeja offers a way to construct a new political center by building it around the ubiquitous African practice of public deliberation, a widely accepted means to resolve legal matters, reconcile feuding groups, and reestablish harmony. In cities, hometown associations and voluntary organizations carry out the task of fostering deliberation (...) among African groups for different reasons. In some instances, the deliberation aims to settle disputes. In others, the aim is to decide the best action to take to address unfortunate incidents such as death. Through a measured, comparative analysis, Deliberative Agency argues that the best way to reimagine and harness the idea of public deliberation, based on current experiences in Africa, is to see it as performance of agency. Building a new political center around the practice places agency at the core of a new political life in Africa. (shrink)

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own theory (...) as a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)

This essay puts in conversation some of Seyla Benhabib’s insights about exiled, stateless and migrant populations with ongoing discussions in critical race theory about the racial exclusions of indigenous populations and populations of colour not only in the foundations of Western modern states but also in their contemporary functioning today. The essay locates these exclusions not only in the failures of states but also in their proper functioning, that is, in their very design and constitutive structures, focusing for this purpose (...) on what is described as constitutive exclusions. The essay argues that the relationship between legal agency and social and political agency needs further articulation within Benhabib’s jurisgenerative politics in order to properly address constitutive exclusions. (shrink)

Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition as (...) the capacity condition. We begin by showing how recent work on the metaphysics of powers might ground an account of the role of capacities in the metaphysics of intentional agency. After discussing the capacity to contract in Anglo-American jurisprudence, we show how the general ontology of capacities and agency sketched can ground and help clarify legal thinking about capacity. We argue that when we couple our understanding of capacity with relevant recent data from developmental neuropsychology, a lacuna in Anglo-American contract law becomes evident. Specifically, it appears that persons in early adulthood do not clearly satisfy the conditions requisite for them to satisfy the capacity condition. In the light of this, we sketch some potential solutions that are compatible with existing legal standards and would contribute to a more consistent application of the capacity condition in contract law. (shrink)

Kirk Ludwig presents a philosophical account of institutional action, such as action by corporations and nation states, arguing that it can be understood exhaustively in terms of the agency of individuals and concepts constructed out of materials that are already at play in our understanding of individual action. He thus argues for a strong form of methodological individualism. The book provides a new account of the logical form of grammatically singular group action sentences (e.g. 'Company laid off 10,000 workers'), (...) and features new analyses of the concepts of a constitutive rule, status function, status role, collective acceptance, and proxy agency. He also provides an analysis of the structure of corporate action, including the status of corporations as legal persons, and of the nature of state action in relation to its citizens. This is the companion volume to From Individual to Plural Agency (OUP 2016), extending the multiple-agents account of collective action set out in the earlier volume. (shrink)

This book offers a comparative study of the management of legal pluralism. The authors describe and analyse the way state and non-state legal systems acknowledge legal pluralism - defined as the coexistence of a state and non-state legal systems in the same space in respect of the same subject matter for the same population - and determine its consequences for their own purposes. The book sheds light on the management processes deployed by legal systems in (...) Africa, Canada, Central Europe and the South Pacific, the multitudinous factors circumscribing the action of systems and individuals with respect to legal pluralism, and the effects of management strategies and processes on systems as well as on individuals. The book offers fresh practical and analytical insight on applied legal pluralism, a fast-growing field of scholarship and professional practice. Drawing from a wealth of original empirical data collected in several countries by a multilingual and multidisciplinary team, it provides a thorough account of the intricate patterns of state and non-state practices with respect to legal pluralism. As the book's non-prescriptive approach helps to uncover and evaluate several biases or assumptions on the part of policy makers, scholars and development agencies regarding the nature and the consequences of legal pluralism, it will appeal to a wide range of scholars and practitioners in law, development studies, political science and social sciences. (shrink)

In this paper we investigate the legal arrangements involved in UK surrogate motherhood from a transaction-cost perspective. We outline the specific forms the transaction costs take and critically comment on the way in which the UK institutional and organisational arrangements at present adversely influence transaction costs. We then focus specifically on the potential role of surrogacy agencies and look at UK and US evidence on commercial and voluntary agencies. Policy implications follow.

Currently, electronic agents are being designed and implemented that, unprecedentedly, will be capable of performing legally binding actions. These advances necessitate a thorough treatment of their legal consequences. In our paper, we first demonstrate that electronic agents behave structurally similar to human agents. Then we study how declarations of intention stated by an electronic agent are related to ordinary declarations of intention given by natural persons or legal entities, and also how the actions of electronic agents in this (...) respect have to be classified under German law. We discuss four different approaches of classifying agent declarations. As one of these, we propose the concept of an electronic person (i.e., agents with limited liability), enrolment of agents into an agent register, and agent liability funds as means to serve the needs of all contracting parties. (shrink)

In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that (...) the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes. The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes. (shrink)

In the criminal legal system, confessions have long been considered the ‘gold standard’ in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. In this paper, I take a close look at false confessions in connection with the phenomenon of testimonial injustice. I show that false confessions provide a unique and compelling challenge to the current conceptual tools used to understand this epistemic wrong. In particular, I argue that (...) we cannot make sense of the unjust ways in which false confessions function in our criminal legal system by focusing exclusively on speakers getting less credibility than they deserve. I conclude that the way we conceive of testimonial injustice requires a significant expansion to include what I call agential testimonial injustice – where an unwarranted credibility excess is afforded to speakers when their epistemic agency has been denied or subverted in the obtaining of their testimony. (shrink)

This collection of essays represents a ground-breaking collaboration between moral philosophers, action theorists, lawyers and legal theorists to set a fresh research agenda on agency and responsibility in negligence. The complex phenomenon of responsibility in negligence is analysed from multi- and interdisciplinary perspectives, shedding light on key ethical and legal issues related to agency and negligence to impact substantive law and policy-making in different jurisdictions. The volume introduces new debates and questions old assumptions, inviting the reader (...) to rethink substantive law and practical ethical reflection. (shrink)

This collection of essays represents a ground-breaking collaboration between moral philosophers, action theorists, lawyers and legal theorists to set a fresh research agenda on agency and responsibility in negligence. The complex phenomenon of responsibility in negligence is analysed from multi- and interdisciplinary perspectives, shedding light on key ethical and legal issues related to agency and negligence to impact substantive law and policy-making in different jurisdictions. The volume introduces new debates and questions old assumptions, inviting the reader (...) to rethink substantive law and practical ethical reflection. (shrink)

The idea that human beings are intellectually self-governing plays two roles in free-speech theory. First, this idea is frequently called upon as part of the justification for free speech. Second, it plays a role in guiding the translation of free-speech principles into legal policy by underwriting the ascriptive framework through which responsibility for certain kinds of speech harms can be ascribed. After mapping out these relations, I ask what becomes of them once we acknowledge certain very general and profound (...) limitations in people's capacity for intellectual self-governance. I argue that acknowledging these limitations drastically undermines the putative justifications for free speech of the type that I identify in the first part of the paper. I then show how we can reformulate an account of intellectual and doxastic responsibility on which we may still be held responsible for what we think or believe even though we lack agent-causal capacities in our thinking and believing. Then, in light of this ascriptive account of intellectual responsibility, I show how the key ideahave minds of their owncan (and should) still play a significant role in guiding the legislative outworkings of free speech. (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)

Law, Human Agency and Autonomic Computing interrogates the legal implications of the notion and experience of human agency implied by the emerging paradigm of autonomic computing, and the socio-technical infrastructures it supports. The development of autonomic computing and ambient intelligence âe" self-governing systems âe" challenge traditional philosophical conceptions of human self-constitution and agency, with significant consequences for the theory and practice of constitutional self-government. Ideas of identity, subjectivity, agency, personhood, intentionality, and embodiment are all central (...) to the functioning of modern legal systems. But once artificial entities become more autonomic, and less dependent on deliberate human intervention, criteria like agency, intentionality and self-determination, become too fragile to serve as defining criteria for human subjectivity, personality or identity, and for characterizing the processes through which individual citizens become moral and legal subjects. Are autonomic âe" yet artificial âe" systems shrinking the distance between (acting) subjects and (acted upon) objects? How âe~distinctively humanâe(tm) will agency be in a world of autonomic computing? Or, alternatively, does autonomic computing merely disclose that we were never, in this sense, âe~humanâe(tm) anyway? A dialogue between philosophers of technology and philosophers of law, this book addresses these questions, as it takes up the unprecedented opportunity that autonomic computing and ambient intelligence offer for a reassessment of the most basic concepts of law. (shrink)

This issue’s “Legal Briefing” column covers legal developments pertaining to organ donation and allocation. This topic has been the subject of recent articles in JCE. Organ donation and allocation have also recently been the subjects of significant public policy attention. In the past several months, legislatures and regulatory agencies across the United States and across the world have changed, or considered changing, the methods for procuring and distributing human organs for transplantation.Currently, in the U.S., more than 100,000 persons (...) are waiting for organ transplantation. In China, more than 1.5 million people are waiting. Given the chronic shortage of available organs (especially kidneys and livers) relative to demand, the primary focus of most legal developments has been on increasing the rate of donation. These and related developments are usefully divided into the following 12 topical categories: 1. Revised Uniform Anatomical Gift Act2. Presumed Consent and Opt-Out3. Mandated Choice4. Donation after Cardiac Death5. Payment and Compensation6. Donation by Prisoners7. Donor Registries8. Public Education9. Other Procurement Initiatives10. Lawsuits and Liability11. Trafficking and Tourism12. Allocation and Distribution. (shrink)

Medical technology, specialization, and the corporatization of health delivery systems in the late twentieth century have all helped give birth to an unwelcome but unavoidable responsibility for individuals with family or friends—serving as a health care proxy. The responsibility comes without monetary compensation, is often involuntary, and lacks any real guidelines beyond the duty to make life-and-death decisions in circumstances over which the proxy has little control.The parameters of the proxy's job have evolved somewhat awkwardly in statutes and case law, (...) as lawmakers and judges have tried to apply conventional concepts to novel circumstances. This article examines the legal and functional status of the proxy, as well as the strengths and weaknesses of current public policy as reflected by state advance directive and surrogate decision-making laws. The first section of the article provides a historical perspective of our current notions of agency law as relevant to health care proxies. (shrink)

Medical technology, specialization, and the corporatization of health delivery systems in the late twentieth century have all helped give birth to an unwelcome but unavoidable responsibility for individuals with family or friends—serving as a health care proxy. The responsibility comes without monetary compensation, is often involuntary, and lacks any real guidelines beyond the duty to make life-and-death decisions in circumstances over which the proxy has little control.The parameters of the proxy's job have evolved somewhat awkwardly in statutes and case law, (...) as lawmakers and judges have tried to apply conventional concepts to novel circumstances. This article examines the legal and functional status of the proxy, as well as the strengths and weaknesses of current public policy as reflected by state advance directive and surrogate decision-making laws. The first section of the article provides a historical perspective of our current notions of agency law as relevant to health care proxies. (shrink)

Moral issues arise not only when neural technology directly influences and affects people’s lives, but also when the impact of its interventions indirectly conceptualizes the mind in new, and unexpected ways. It is the case that theories of consciousness, theories of subjectivity, and third person perspective on the brain provide rival perspectives addressing the mind. Through a review of these three main approaches to the mind, and particularly as applied to an “extended mind”, the paper identifies a major area of (...) transformation in philosophy of action, which is understood in terms of additional epistemic devices—including a legal perspective of regulating the human–machine interaction and a personality theory of the symbiotic connection between human and machine. I argue this is a new area of concern within philosophy, which will be characterized in terms of self-objectification, which becomes “alienation” following Ernst Kapp’s philosophy of technology. The paper argues that intervening in the brain can affect how we conceptualize the mind and modify its predicaments. (shrink)

In this article, we look at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and (...) failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct. (shrink)