Are universities justified in trying to regulate student use of cognitive enhancing drugs? In this article I argue that they can be, but that the most appropriate kind of regulatory intervention is likely to be voluntary in nature. To be precise, I argue that universities could justifiably adopt a commitment contract system of regulation wherein students are encouraged to voluntarily commit to not using cognitive enhancing drugs. If they are found to breach that commitment, they should (...) be penalized by, for example, forfeiting a number of marks on their assessments. To defend this model of regulation, I adopt a recently-proposed evaluative framework for determining the appropriateness of enhancement in specific domains of activity, and I focus on particular existing types of cognitive enhancement drugs, not hypothetical or potential forms. In this way, my argument is tailored to the specific features of university education, and common patterns of usage among students. It is not concerned with the general ethical propriety of using cognitive enhancing drugs. (shrink)

In many jurisdictions, legal frameworks afford patients the opportunity to make prospective medical decisions or to create directives that contain a special provision forfeiting their own ability to object to those decisions at a future time point, should they lose decision‐making capacity. These agreements have been described with widely varying nomenclatures, including Ulysses Contracts, Odysseus Transfers, Psychiatric Advance Directives with Ulysses Clauses, and Powers of Attorney with Special Provisions. As a consequence of this terminological heterogeneity, it is challenging for healthcare (...) providers to understand the terms and uses of these agreements and for ethicists to engage with the nuances of clinical decision‐making with such unique provisions surrounding patient autonomy. In theory, prospective self‐binding agreements may safeguard patient's “authentic” wishes from future “inauthentic” changes of mind. In practice, it is unclear what may be comprised within these agreements or how—and to what effect—they are used. The primary focus of this integrative review is to curate the existing literature describing Ulysses Contracts (and analogous decisions) used in the clinical arena, in order to empirically synthesize their shared essence and provide insights into the traditional components of these agreements when used in practice, the requirements of their consent processes, and the outcomes of their utilization. (shrink)

This research documents consumers’ potential to monitor corporations’ License to Operate through their consumption responses to corporate social responsibility failures. The premise is that the type of social contracts or standards in place may determine how consumers, through their individual and collective behaviors, can play a direct role in influencing corporate behavior, when corporations fail to meet social responsibility standards. An experiment conducted with a large sample of consumers in the United States shows that consumers respond differently to a company’s (...) failure in its social responsibilities depending on whether the violated standard is a government mandate or a voluntary commitment and depending on the consumers’ own environmental consciousness. The findings highlight the potential power of individual consumers and consumer collectives in narrowing the governance gaps relative to social and environmental issues and reducing the likelihood of CSR failures. (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)

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central (...) to human interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.” II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanisms of choice. We substantially concur with his position, and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view. III. Contracts. (7) Peter Benson contends our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures — more so than transfer theory. (8) Daniel Markovits and Alan Schwartz claim provocatively that contract theory must: capitulate before pluralism (as they endorse); leverage it; or fall victim to a so-called “embracing” approach (their charge against us). We reject the charge that choice theory is foundationally value-pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Each Article in this Issue advances the field; each prompts us to refine choice theory — all steps, we hope, toward a more just and justified law of contract. (shrink)

The ultimate aim of this dissertation is to determine whether libertarian theories of property can be adequately grounded in Locke's theory of natural rights. I defend the thesis that Locke's theory has no room for a fundamental commitment to natural rights, including property rights. ;In the first three chapters, I challenge each component of the dominant interpretation of Locke's theory of property in this century, viz., that of C. B. Macpherson. In Chapter One, I criticize Macpherson's claim that Locke's (...) view allows unlimited appropriation. In Chapter Two, I agree with Macpherson that Locke defended a state in which the franchise was restricted to those who held significant property, viz., land. However, this can be reconciled with an initial contract into civil society that meets certain standards of rationality and fairness. Thus, while political power is not equally distributed in the state Locke describes, that is not necessarily inconsistent with a rational, free, and voluntary social contract. This shows that we need not see Locke as committed to the interests of the wealthiest members of society. In Chapter Three, I agree with Macpherson that Locke's view is that the purpose of contracting out of the state of nature is the protection of one's property. But I briefly argue that Macpherson does not take seriously Locke's concept of property right and the wide range of objects that count as property. If we pay careful attention to Locke's terminology, we can see that although the purpose of the state is the protection of property, that does not guarantee greater protection for the wealthy than it ensures the poor. ;In Chapter Four, I challenge a quite different thesis. James Tully has argued that Locke did not defend private property at all, but attacked it. I criticize this interpretation on the grounds that Locke explicitly allows certain practices that Tully takes to be violations of the law of nature as Locke construes it. I also criticize the claim that certain developments in a commercial economy, such as the consumption of valuable land, necessarily violate the law of nature. In addition, I argue that the idea of conventionally established property rights is inconsistent with Locke's account of how and why government comes to be established. ;In Chapter Five, I provide an account of the principles underlying Locke's account of rights, both within and without civil society. I argue that Locke's view is improperly construed as a view which gives pride of place to rights. Rather, rights are almost always derivative from duties, and in those cases where they are not derivative, they are subordinate to certain primary duties that oblige us in virtue of our status as God's creations. (shrink)

The great challenge of rhetorical argument is to make discourse ethical without making it less logical. This challenge is of central importance throughout the full range of practical argument, and understanding the relation of the ethical to the logical is one of the principal contributions the humanities, in this case the study of rhetoric, can make to legal scholarship. Aristotle’s Rhetoric shows how arguments can be ethical and can create ethical relations between speaker and hearer. I intend to apply Aristotle’s (...) analysis to a phenomenon that did not yet exist for him, that of authority, by asking how the acts of asserting and accepting authority can be ethical acts. I take as a test case a peculiarly unfortunate and inept appeal to authority, that offered by the counsel for the District of Columbia in arguing Bolling v Sharp who cited Taney’s opinion in Dred Scott to clinch his point. By seeing just what goes wrong in such a maladroit appeal, I explore the rational, voluntary and ethical dimensions of a decision to accept a given commitment to authority. I use Joseph Raz’s analysis of authority and the relation of reason to authority, yet think I go beyond Raz by exploring the deliberate and voluntary nature of submission to authority. Choosing to be bound by an authority is an ethical act. As such it is always rational and yet never purely rational. The Supreme Court’s choice of authorities is part of its making itself into an authority, and is a paradigm of the ethical act of choosing to be obligated. Choosing to be committed or obligated is a central paradox of political theory and considerations of authority and obligation, at least since early social contract theorists. However, its importance for judicial reasoning, which at the same time chooses to submit to authority and itself becomes an authority, has not been noted. Consideration of the relations between the ethical and the logical can help us better to articulate the constitution of ethical authority. (shrink)

This piece argues that free migration was a central if implicit part of the liberal social contract and that America’s founders were both aware of this and exploited it to legitimate their new state. The piece begins by describing this uniquely American contribution to liberal political thought. It then juxtaposes this contribution against the nature of our own international order, to show just how foreign the American Century has become. The piece closes with a short depiction of what an (...) American Century would look like today—were it true to this early ideal—and comments on its feasibility. (shrink)

Nancy MacLean’s book, Democracy in Chains, raised questions about James M. Buchanan’s commitment to democracy. This paper investigates the relationship of classical liberalism in general and of Buchanan in particular to democratic theory. Contrary to the simplistic classical liberal juxtaposition of “coercion vs. consent,” there have been from Antiquity onwards voluntary contractarian defenses of non-democratic government and even slavery—all little noticed by classical liberal scholars who prefer to think of democracy as just “government by the consent of the (...) governed” and slavery as being inherently coercive. Historically, democratic theory had to go beyond that simplistic notion of democracy to develop a critique of consent-based non-democratic government, e.g., the Hobbesian pactum subjectionis. That critique was based firstly on the distinction between contracts or constitutions of alienation (translatio) versus delegation (concessio). Then the contracts of alienation were ruled out based on the theory of inalienable rights that descends from the Reformation doctrine of inalienability of conscience down through the Enlightenment to modern times in the abolitionist and democratic movements. While he developed no theory of inalienability, the mature Buchanan explicitly allowed only a constitution of delegation, contrary to many modern classical liberals or libertarians who consider the choice between consent-based democratic or non-democratic governments (e.g., private cities or shareholder states) to be a pragmatic one. But Buchanan seems to not even realize that his at-most-delegation dictum would also rule out the employer-employee or human rental contract which is a contract of alienation “within the scope of the employment.”. (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)

To be committed to the truth of a proposition is to constrain one’s options in a certain way: one may not reason as if it is false, and one is obligated to reason as if it is true. Though one is often committed to the truth of the propositions that one believes, the states of belief and commitment are distinct. For historical reasons, however, they are rarely distinguished. Distinguishing between the two states allows for a defense of epistemic deontology (...) against the charge that beliefs are not under the voluntary control of believers, and so cannot be subject to deontic evaluation. It also allows for the resolution of some disputes between naturalists and non-naturalists in epistemology, and permits us to account for obvious facts about the connection between belief and truth in a theoretically parsimonious way. (shrink)

The traditional view according to which we adults tacitly consent to a state’s lawful actions just by living within its borders—the residence theory—is now widely rejected by political philosophers. According to the critics, this theory fails because consent must be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence within a state is typically none of these things. Few people intend to remain within the state in which they find themselves, and few realize that by remaining they (...) are consenting to the state’s lawful actions. In addition, the various obstacles standing in the way of us leaving the state render our remaining involuntary. Thus, the critics conclude, few if any people can be considered to have consented through their residence. I argue that these objections fail and that the residence theory remains a viable option, at least for those who are not committed incompatibilists. (shrink)

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in (...) which agreements should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains. (shrink)

This work provides a game theoretical analysis of the classical idea of a social contract. According to what we might call the Hobbesian justification of the state, coercion is necessary in order to provide people with basic security and to enable them to successfully engage in mutually beneficial cooperation. The establishment and maintenance of a central coercive power, i.e. a state, can therefore be said to be in everyone's interest. The aim of this essay is to examine and evaluate (...) these claims. It is common to interpret the problem of cooperation in a Hobbesian state of nature as a Prisoner's Dilemma game. In this kind of game, each agent prefers that cooperation is brought about, but each also prefers not to cooperate herself, regardless of what others do. Most studies, however, have focused on the prospects for spontaneous cooperation in the 2-player PD. This work focuses instead on the generalized, n-player version of the same game. Invoking an evolutionary game theoretical model, it is argued that the prospects for spontaneous cooperation to emerge in an n-player PD are much worse than in the 2-player case. In order to analyze how the existence of sanctions might affect the prospects for cooperation, a model of a limited sanction system is developed. It is demonstrated that the game that emerges when an n-player PD is modified by a suitable system of sanctions is an n-player version of what Sen has called an Assurance game. It is also demonstrated that in this game, unlike the n-player PD, general cooperation is evolutionarily stable. It is also discussed whether the establishment and maintenance of such a sanction system does itself constitute an n-player PD. It is argued that it does not. (shrink)

Business organizations in their work environment, aspire to create a high level of performance and low levels of absenteeism and turnover. Organizational commitment is considered a key factor in achieving this objective, however, it can be conditioned by several factors, among which is the psychological contract. The literature has related the organizational commitment with the fulfillment of the psychological contract framing it as one of the explanatory variables. This work aims to investigate research trends on psychological (...) contract and organizational commitment. For this purpose, bibliometric techniques and the software SciMAT have been used. 220 journal articles indexed in Web of Science (WoS) were analyzed. The findings indicate that the theme chosen for this review is valid. Based on the relationship between the two concepts, as the most recurrent themes, issues such as the sense of justice and the consequences of the violation of the psychological contract, normative commitment, HR management or job insecurity are addressed. However, in the last period analyzed (2015–2018), publications related to more sensitive topics to the present time emerge, such as the employability or the impact of these two concepts in the new generations (millennial and generation-Y) or the retention of talent. On the other hand, shortcomings are detected in the research on the ideologically charged psychological contract, the analysis of the organizational context or cultural and demographic factors in relation to both theoretical constructs. The contribution of this work lies in giving visibility to scientific results, which will serve business organizations as instruments for decision making in their labor management and, for the scientific community, as knowledge of the research spaces to explore. (shrink)

The indirect argument (IA) for incompatibilism is based on the principle that an action to which there is no alternative is unfree, which we shall call ‘PA’. According to PA, to freely perform an action A, it must not be the case that one has ‘no choice’ but to perform A. The libertarian and hard determinist advocates of PA must deny that free will would exist in a deterministic world, since no agent in such a world would perform an action (...) to which there were alternatives: an action there being the necessary consequence of preceding events and the laws of nature, it would not be possible for a person to perform actions besides those he actually performs. Determinism is seen here as “indirectly” ruling out free will by making the satisfaction of a necessary condition of free agency impossible, the former requiring, according to the leading proponent of libertarianism, Robert Kane, the performance of free actions. To have a free will, on his view, is to have committed “self-forming” actions, that is, to have done things to which there were alternatives the doing of which led to the development of the desires, preferences, and beliefs that make up one’s character. -/- The range of phenomena obeying probabilistic laws has yet to be ascertained. Under certain assumptions, both STR and GTR entail an indeterministic mechanics. But, contrary what is often claimed, quanta do not behave indeterministicly: the wave function/probabilistic laws being necessary only insofar as we wish to macroscopicly describe their behavior. It is far less clear, however, that the macro-events involved in human decision making and behavior, such as the releasing of neurotransmitters and the contracting of muscles, occur indeterministically. The ontological status of these events-whether or not they are the necessary effects of prior occurrences-is, of course, what matters in the free will debate. For present purposes, however, this question will be put aside. Instead, I will concentrate on buttressing the existing case against PA, aiming to show that even if deterministic laws hold at the level of macro-phenomena, free will remains a possibility. That is to say, I shall defend the thesis that so-called “Frankfurt cases” demonstrate that alternatives are not required to perform an action that is free in the sense of being something for which its agent is responsible. -/- My defense will be carried out in three stages. First, I must respond to those who maintain that a Frankfurt case is not a counterexample to PA because it is not an example of someone acting without alternatives. Here, I confront the question of how “robust” an alternative must bein order to provide an agent with a way of avoiding praise or blame for the action that she actually commits. Secondly, I must show that an agent may be praiseworthy or blameworthy despite lacking alternatives at the time at which she acts, i.e., an appropriate object of one of a Strawsonian “reactive attitude” sans what I shall call “local” alternatives. At this point, I must attend to David Widerker’s recent critique of the use of Frankfurt cases as counterexamples to PA. Finally, I set for myself what I take to be the most difficult task of a compatibilist: demonstrating that not even an “historical” alternative-the possibility of having chosen a different path in life than the one that one has actually taken-is needed to have a free will. In this connection, it will be incumbent upon me to explain why it would be fair to hold someone accountable for behavior issuing from a self she did not create, dispositions originating from natural conditions she did not establish. That is to say, in denying that a free will entails the ability to transcend oneself, I shall be faced with what Kane calls the “ultimacy” problem: how to explain away the incompatibilist’s intuition that it is senseless to adopt a reactive attitude towards someone incapable of self-transcendence, even if such a reaction is itself unavoidable. By showing that the desire for self-transcendence is itself irrational, I intend to solve this problem. I will, thus, be left defending a version of compatibilism according to which a free will is to be understood as a healthy faculty-the will-being exercised in an environment conducive to self-realization, which is its purpose. (shrink)

The paper studies equilibrium contracts under adverse selection when there is repeated interaction between a principal and an agent over an infinite horizon, without commitment across periods. We show the second-best contract is offered in a perfect Bayesian equilibrium of the infinite horizon model. Unlike the equilibrium contracts in the finite-horizon, the equilibrium contracts in the infinite horizon are not subject to either the ratchet effect or take-the-money-and-run strategy, but rely on a carrot and stick strategy. We study (...) two important applications, one of which is about the optimal regulation of a publicly-held firm. This application has a mixture of both moral hazard and adverse selection. The other application is to the problem of optimal nonlinear pricing when the valuation of the buyers are drawn from a continuum. (shrink)

Staff at Cincinnati Children’s Hospital Medical Center used behavior contracts to address “difficult” patients and families for years. Nonadherence with recommended medical treatments was generally...

The permissibility of actions depends upon facts about the flourishing and separateness of persons. Persons differ from other creatures in having the task of discovering for themselves, by conjecture and refutation, what sort of life will fulfil them. Compulsory slavery impermissibly prevents some persons from pursuing this task. However, many people may conjecture that they are natural slaves. Some of these conjectures may turn out to be correct. In consequence, voluntary slavery, in which one person welcomes the duty to (...) fulfil all the commands of another, is permissible. Life-long voluntary slavery contracts are impermissible because of human fallibility; but fixed-term slavery contracts should be legally enforceable. Each person has the temporarily alienable moral right to direct her own life. (shrink)

Muscle synergy analysis via surface electromyography is useful to study muscle coordination in motor learning, clinical diagnosis, and neurorehabilitation. However, current methods to extract muscle synergies in the upper limb suffer from two major issues. First, the necessary normalization of EMG signals is performed via maximum voluntary contraction, which requires maximal isometric force production in each muscle. However, some individuals with motor impairments have difficulties producing maximal effort in the MVC task. In addition, the MVC is known to be (...) highly unreliable, with widely different forces produced in repeated measures. Second, synergy extraction in the upper limb is typically performed with a multidirection reaching task. However, some participants with motor impairments cannot perform this task because it requires precise motor control. In this study, we proposed a new isometric rotating task that does not require precise motor control or large forces. In this task, participants maintain a cursor controlled by the arm end-point force on a target that rotates at a constant angular velocity at a designated force level. To relax constraints on motor control precision, the target is widened and blurred. To obtain a reference EMG value for normalization without requiring maximal effort, we estimated a linear relationship between joint torques and muscle activations. We assessed the reliability of joint torque normalization and synergy extraction in the rotating task in young neurotypical individuals. Compared with normalization with MVC, joint torque normalization allowed reliable EMG normalization at low force levels. In addition, the extraction of synergies was as reliable and more stable than with the multidirection reaching task. The proposed rotating task can, therefore, be used in future motor learning, clinical diagnosis, and neurorehabilitation studies. (shrink)

In this pithy and highly readable book, Brian Skyrms, a recognised authority on game and decision theory, investigates traditional problems of the social contract in terms of evolutionary dynamics. Game theory is skilfully employed to offer new interpretations of a wide variety of social phenomena, including justice, mutual aid, commitment, convention and meaning. The author eschews any grand, unified theory. Rather, he presents the reader with tools drawn from evolutionary game theory for the purpose of analysing and coming (...) to understand the social contract. The book is not technical and requires no special background knowledge. As such, it could be enjoyed by students and professionals in a wide range of disciplines: political science, philosophy, decision theory, economics and biology. (shrink)

Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only (...) to the extent, freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric. This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent. (shrink)

Read Jus, 17 June 1887): The voluntary taxation proposal really means the dissolution of the State into its constituent atoms, and leaving them to recombine in some way or no way, just as it may happen. There would be nothing to prevent the existence of five or six "States" in England, and members of all these "States" might be living in the same house! The proposal is, it appears to me, the outcome of an idea in the minds of (...) those who propound it that the State is, or ought to be, founded on contract, just as a joint stock company is. ... The explanation of the whole matter, I believe, is that ... the State is a social organism, evolved as every other organism is evolved, and not requiring any more than other organisms to be based upon a contract ... (shrink)

‘Ulysses contracts’ are an instrument through which a psychiatric patient may prearrange involuntary commitments to be put into effect if the patient satisfies certain diagnostic criteria in the future. Proposals for Ulysses contracts typically impose numerous safeguards. This paper argues against the intuitively plausible safeguard which permits only presently remitted patients to contract. Instead of requiring a patient's remission, it is argued that the appropriate safeguard is the patient's ability, whether remitted or not, to offer good reasons for wishing (...) to contract. In short, what matters is not an executive's character, but an executive's reasons, and a bad executive may have good reasons. Attempts to deny the accessibility of good reasons in unremitted patients are rejected on the ground that psychiatric diagnosis requires psychiatrists to be able to distinguish between good and bad reasons in both remitted and unremitted patients. If psychiatrists cannot do that, psychiatric diagnosis is impossible. (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)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would (...) indeed be better regulated by—and relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

ABSTRACT Belgium legalised voluntary euthanasia in 2002, thus ending the long isolation of the Netherlands as the only country in which doctors could openly give lethal injections to patients who have requested help in dying. Meanwhile in Oregon, in the United States, doctors may prescribe drugs for terminally ill patients, who can use them to end their life – if they are able to swallow and digest them. But despite President Bush's oft‐repeated statements that his philosophy is to ‘trust (...) individuals to make the right decisions’ and his opposition to ‘distant bureaucracies’, his administration is doing its best to prevent Oregonians acting in accordance with a law that its voters have twice ratified. The situation regarding voluntary euthanasia around the world is therefore very much in flux. This essay reviews ethical arguments regarding voluntary euthanasia and physician‐assisted suicide from a utilitarian perspective. I shall begin by asking why it is normally wrong to kill an innocent person, and whether these reasons apply to aiding a person who, when rational and competent, asks to be killed or given the means to commit suicide. Then I shall consider more specific utilitarian arguments for and against permitting voluntary euthanasia. (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)

This article begins with a detailed analysis of how the choice situation of a social contract for international business ethics can be constructed and justified. A choice situation is developed by analyzing conceptions of the multinational firm and the domain of international business. The result is a hypothetical negotiation between two fictional characters, J. Duncan Grey and Elizabeth Redd, who respectively represent the interests of businesses and communities seeking to engage in international trade. The negotiators agree on ethical principles (...) governing wages, the environment, and compliance social and cultural norms. These principles are then shown to rest in wide reflective equilibrium with considered moral judgments on international business ethics, which are drawn from international agreements, such as the UN Declaration on Human Rights, and voluntary business initiatives, such as the Global Sullivan Principles and the UN Global Compact. (shrink)

The law of contracts, at least in its orthodox expression, concerns voluntary, or chosen, legal obligations. When Brody accepts Susan’s offer to sell him a canoe for a set price, the parties’ choices alter their legal rights and duties. Their success at changing the legal landscape depends on a background system of rules that specify when and how contractual acts have legal effects, rules that give the offer and acceptance of a bargain-exchange a central role in generating obligations. (...) class='Hi'>Contract law conceived as a body of rules empowering individuals to shape their own rights and responsibilities presents an object of philosophical study. The philosophy of contract includes two broad sets of projects. One set, the focus of the first part of this entry, targets the basic structure and normative justification of the law of contracts. The aim is to subsume a salient body of contract law rules under general principles in order to clarify contract law’s conceptual categories, distinguish it from other areas of law, and specify criteria relevant to its normative appraisal. This kind of philosophical work presupposes detailed knowledge of the law in existing legal regimes, and the entry begins by outlining the common law of contracts. A second set of projects draws on resources from the philosophy of language, philosophy of action, and moral and political philosophy to address debates within contract law. Questions about the nature of meaning and interpretation, intentionality, freedom in contract, and distributive justice drive contemporary legal debates concerning contract formation, interpretation, and enforcement. Philosophical work on these topics has attracted significant commentary which serves as the focus of the second part of this entry. (shrink)

An increasing number of bioethicists are raising concerns that young childless women requesting sterilisation as means of birth control are facing unfair obstacles. It is argued that these obstacles are inconsistent, paternalistic, that they reflect pronatalist bias and that men seem to face fewer obstacles. It is commonly recommended that physicians should change their approach to this type of patient. In contrast, I argue that physicians’ reluctance to eagerly follow an unusual request is understandable and that whatever obstacles result from (...) this reluctance serve as a useful filter for women who are not seriously committed to their expressed requests for sterilisation. As women already disproportionally bear the birth control burden, less resistance that men might be getting in terms of voluntary sterilisation works to women’s advantage, providing a much needed balance. Societal attitudes towards women and motherhood should not be confused with individual physicians’ reasonable reluctance to jump at a serious elective procedure at fairly mild expression of interest. (shrink)

Herein we examine the theory and practical limits of designing a voluntary incentive scheme to protect endangered species on private land. We consider both an ay-ante scheme, in which a contract to the landholder depends only on what the landholder reports, and an ay-post scheme, in which a contract to the landholder depends on reports from all landowners. Except in special cases, the ex-ante scheme never implements the full information allocation, and can actually set aside too much (...) land. In contrast, expected habitat size under the ex-post scheme is smaller than both the ex-ante and full information allocations. (C) 2001 Elsevier Science (USA). (shrink)

Many liberal egalitarians support laws that prevent people from making exploitative and unconscionable contracts. These contracts may include low-wage labor agreements or payday loans, for example. I argue that liberal egalitarians should rethink their support for laws that limit the freedom to make these illiberal contracts, as long as the contracts are voluntary and do not violate people’s other enforceable rights. Paternalistic considerations cannot justify limits on illiberal contracts because they are not only likely to misfire; they also express (...) condescending and inegalitarian judgments of citizens. I then consider Seana Shiffrin’s argument that officials may avoid paternalism while still deterring illiberal contracts if they instead refuse to use public institutions to accommodate contracts that are contrary to the fundamental values on which those institutions are based. This argument encounters a dilemma. Officials may refuse to enforce illiberal contracts and ban private enforcement of illiberal contracts, but this strategy encounters the charges of paternalism it aimed to avoid. Or, officials may refuse to enforce illiberal contracts but tolerate private enforcement, but this approach would make the worst off members of society even more vulnerable and marginalized. Therefore, liberal egalitarians should support public enforcement of illiberal contracts because the alternatives are worse. (shrink)

In an interesting response to an article I published in CQ that questions the ability of advance directives to reflect autonomy, Christopher Tollefsen raises a number of issues that deserve greater attention. Tollefsen offers several examples to illustrate how the critique of advance directives I offer would also threaten other choices that most people would consider autonomous. Importantly, I largely agree that the examples Tollefsen offers should be captured as autonomous. Where I disagree, however, is whether these examples reflect the (...) particular type of second order decision strategy that I categorize advance directives as, and so whether the critique of advance directives I offer, if accepted, would commit us to an unreasonably narrow conception of autonomy. (shrink)

In this paper, the nature of the contract of employment is explored from an ethical point of view. It is argued that certain normative arguments should be taken into account in order to justify such a contract. Furthermore, an argument is developed against the claim that (a) the individual’s freedom of decision and (b) the practice of institutional arrangements are sufficient to justify a contract of employment. The dimensional analysis offered shows that further conditions are needed: (a) (...) must be elaborated and interpreted to the extent that this condition is not sufficient – rather sub-criteria regarding the agent’s state of knowledge must be met; and (b) should be supplemented by a demand for fairness. A tentative analysis of existing work contracts is the starting point for the ethical analysis. The aim is to show what a legitimate, or reasonable, contract of employment will require. Finally, some important normative implications and consequences regarding the contract’s normative status are discussed. (shrink)

In this paper, I consider the connection between consequence relations and closure operations. I argue that one familiar connection makes good sense of some usual applications of consequence relations, and that a largeish family of familiar noncontractive consequence relations cannot respect this familiar connection.

States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit ‘emergency constitution’, i.e., the constitutionally safeguarded rules of operation for a state of emergency. In this paper, I ask whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory. I argue that there are important arguments, both (...) against and in favor of constitutionalized emergency provisions, and that social contract theory—as applied by economists—can be of some help when deciding whether to have, or not to have an emergency constitution. This paper introduces a novel argument for justifying emergency constitutions. It argues that they can serve as a commitment mechanism protecting both citizens and politicians from overreacting to rare but significant threats. (shrink)

Fragile states and developing countries increasingly contract out health services to non-state providers (NSPs) (such as non-governmental organisations, voluntary sector and private sector). The paper identifies ethical issues when contracts involve devolution of health services to NSPs and proposes procedures to prevent or resolve these ethical dilemmas. Ethical issues were identified by examining processes of contracting out. Health needs could be used to select areas to be contracted out and to identify service needs. Health needs comprise “disease-burden-related needs”, (...) “health-service needs”, and “urgency of health-service needs”. The mix of services should include an analysis of cost-effectiveness. NSPs should be selected fairly, without bias, and conflicts of interest during their work must be avoided. The population’s views must be respected and accountability structures established. Devolved health services should ensure equity of access to healthcare. The services ought to be sustainable and evaluated objectively. Of these issues, conflicts of interest among NSPs and sustainability of health services have not attracted attention in the literature on ethics of health policy. Fair procedures could address these ethical issues—for example, public consultation on issues; decisions based on the public consultation and made on evidence; principles of decisions stated and reasonable; decisions given adequate publicity; a mechanism established to challenge decisions; assurance that mechanisms meet the above conditions; and regular review of the policies. These procedures are complemented by improving self-governance of NSPs, countries’ development of guidelines for devolving health services, and measures to educate the public of the client countries on these issues. (shrink)

Smart Contracts enable the automated execution of exchanges on the blockchain. From an ontological perspective, smart contracts create and automate the fulfillment of social commitments between actors. Whereas traditional deontic logic is used to make a legal determination in contractual multi-actor interactions, this paper focuses on the consequences of these actions resulting from that determination, thereby shifting the focus from monitoring to execution. The interactions between actors and the consequences in terms of commitments have not yet been formalized for smart (...) contracts. The perspective of smart contracts is interesting, since they are considered to be autonomous agents, able to generate automated actions. We use the Event Calculus as a formal logic to represent and reason about the effects of these automated actions and the resulting commitments. Since the Event Calculus deals with local events and the consideration of time, this approach enables the uniform representation of commitments, including their operations and reasoning rules. (shrink)

The central question which I address is whether appeal to a hypothetical contract between moral persons is acceptable as a method for justifying basic ethical principles. ;My first two substantive chapters concern general issues in metaethics, particularly the shortcomings of both standard naturalist and noncognitivist theories of evaluative language; some conditions of acceptability for methods of moral justification are proposed and supported as well. Firth's and Hare's methods fail to satisfy these criteria, while Brandt's present approach and Rawls' method (...) of reflective equilibrium largely succeed. Rawls, quite correctly, intends his contract argument to apply only within the framework of this more basic method. ;Major aspects of Rawls' contract theory are examined at length in Chapter IV. My central concern is with the reasons Rawls gives for regarding his interpretation of the initial contract situation as the "rationally preferred" one. The concepts of impartiality, neutrality, and fairness are discussed at the outset. I then proceed to explain and criticize Rawls' reasons for imposing a "thick veil of ignorance" on the contractors. The argument that natural assets and social contingencies are "morally arbitrary" and hence should not influence the choice of principles of justice is found to be open to serious objection and to rest upon a specific type of egalitarian moral commitment. Rawls' "Kantian" argument is shown to lack sufficient support and to involve an unwarranted exclusion of certain deontological, perfectionist, and other teleological theories from serious consideration. ;Grice's contract theory, which omits the "veil," is examined in Chapter V, together with his account of prudential reasoning and his argument for a necessary connection between moral obligation and rationality. His type of contract approach is demonstrated to be unworkable due to vague description of the initial situation. Moreover, it has unacceptable implications and cannot serve as an appropriate basis for moral justification in any case. ;I conclude that the ideal contract method is at best a very conditional procedure of moral justification, far more suitable for some types of moral conceptions than for others. It seems unlikely, furthermore, that achievement of wide reflective equilibrium or "full rationality" in Brandt's sense would result in a consensus favoring any one description of the initial contract situation. (shrink)

If contracts cannot be fully specified Pareto optimal results may be closed off because individuals cannot rationally trust each other's promises. This paper assumes that human individuals can become internally committed not to act opportunistically and that others can detect to a certain extent whether they are dealing with an uncommitted (untrustworthy) or a committed (trustworthy) partner. Adopting an `indirect evolutionary approach' we show that co-operative commitments can survive in evolutionary competition even if conventional mechanisms like repetition, reputation, contract (...) or promising are lacking. If detection of uncommitted individuals is neither too costly nor too unreliable there will in general be a `niche' for both committed and uncommitted actors even in one off large numbers' interactions. (shrink)

Martha Nussbaum has powerfully argued in Frontiers ofJustice and elsewhere that John Rawls’s sort of social-contract theory cannot usefully be deployed to deal with issues pertaining to justice for the disabled. To counter this claim, this article deploys Rawls’s sort of social-contract theory in order to deal with issues pertaining to justice for the disabled—or, since, as Nussbaum stresses, we all have some degree of disability—for the severely disabled. In this way, rather than questioning one by one Nussbaum’s (...) interpretive claims about Rawls’s view, one can simply see how the Rawlsian framework can work in application to this issue. Following Rawls’s lead, the paper utilizes the idealized “initial choice situation” as an analytic and comparative device for examining alternative principles of justice, developing three different interpretations of the initial choice situation that each correspond to a different set of principles that apply to people of all levels of disability. One of these sets of principles is a simple extension of Rawls’s, one is very close to what Nussbaum herself recommends, and the third is a kind of hybrid. In this way, it is shown not only that Rawls’s social-contract device can usefully be applied to these issues, but also that it is helpful for exploring the deep commitments underlying each of these competing sets of principles. (shrink)

The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do (...) not view contract as self-justifying but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favours instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules. (shrink)