Systemic financial risk is one of the most significant collective action problems facing societies. The Great Recession brought attention to a tragedy of the commons in capital markets, in which market participants, from the first-time homebuyer to Wall Street financiers, acted in ways beneficial to themselves individually, but which together caused substantial collective harm. Two kinds of risk are at play in complex chains of transactions in financial markets: ordinary market risk and systemic risk. Two moral questions are relevant in (...) such cases. First, from the standpoint of interactional morality, does a person have a moral duty to avoid risk of harm to others if their financial transactions contribute in some way, however small, to the loss or harm? This article identifies the conditions in which persons are morally responsible in such cases. Second, from the standpoint of institutional morality, how should society distribute the risk of harm associated with massively complex financial markets? This question is considered in the context of the home mortgage credit market. Luck egalitarianism, in particular a Dworkinian insurance scheme to allocate risks and resources relating to mortgage credit and private home ownership, offers substantial promise. (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

Global justice is one of the most important subjects in law and political theory today. What principles of justice might tell us about the actual practices of the WTO and other international economic institutions is of vital importance to states and their citizens. This volume reflects the results of a symposium held at Tillar House, the ASIL headquarters in Washington, DC, in November 2008 which brought together philosophers, legal scholars, and economists to discuss the problems of understanding international economic law (...) from the standpoint of rights, justice, and economic efficiency. The book makes advances in developing the normative criterion for ecaluation and justifying the international economic legal order. (shrink)

Should states use force to bring about regime change? International law recognizes no such grounds. This article seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to (...) place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is in a moral principle I call the Human Rights Principle, which provides that states may intervene militarily to stop egregious violations of basic human rights or prevent such violations when they are imminent. The Human Rights Principle does not support regime change intervention. I argue that an alternative moral principle, the Self Governance Principle, provides the moral justification for regime change intervention. Under the Self Governance Principle, legitimate states (and legitimate states only) have a collective obligation to intervene to assist citizens in an illegitimate state to bring about regime change only if a substantial likelihood exists that the citizens of the illegitimate state will form a new government in a manner meeting the conditions for national self determination, which includes the conversion of the state into a legitimate state, and post-conflict reform will a bring about a legal system meeting the conditions for the law to have practical authority to the state's population. States may comply with their collective obligation by providing just and efficacious institutions to support regime change. If the conditions in the Self Governance Principle are not met, then states must refrain from using force for regime change purposes. The conditions in the Self Governance Principle are strict and rarely met. The Iraq invasion, for example, did not meet them. Though this article is not directly about international law, it elucidates moral principles that can inform international law. (shrink)