Libertarians often rely on arguments that subordinate the principle of liberty to the value of its economic consequences. This invites the question of what a pure libertarian theory of justice—one that takes liberty as its overriding concern—would look like. Grotius's political theory provides a template for such a libertarianism, but it also entails uncomfortable commitments that can be avoided only by compromising the principle of liberty. According to Grotius, each person should be free to decide how to (...) act as long as her actions do not violate the equal liberty of others. According to this principle, however, people are free to enter any contract and alienate any rights, permitting even contracts of slavery or the alienation of rights of bodily integrity. Libertarians can escape this commitment to absolute freedom of contract only by adopting ad-hoc amendments to the principle of liberty. (shrink)

Introduction -- "Every Legitimate Government is Republican": Rousseau's Debt to and Departure from Montesquieu on Republicanism -- What if There is no Legislator? Rousseau's History of the Government of Geneva -- Rousseau's Republican Citizenship: The Moral Psychology of The Social Contract -- Rousseau's negative liberty: Themes of domination and skepticism in The Social Contract -- Rousseau's Ancient Ends of Legislation: Liberty, Equality (& Fraternity) -- Property and Possession in Rousseau's Social Contract -- Political Equality Among Unequals -- On (...) the Primacy of Peoplehood: Nations and Nationalism in Rousseau's Social Contract -- Rousseau on Voting and Electoral Laws -- Rousseau and the puzzle of the Roman Republic -- Rousseau's Case against Democracy -- Rousseau's Dilemma or "Of Civil Religion" -- Entreating the Political: Politics and Theology in Rousseau's Social Contract -- Civil Religion and Political Unity: Social Contract 4.8. (shrink)

A central charge against T. H. Green’s conception of positive freedom is that it confuses freedom and social justice. Rather than illuminating and elucidating the meaning of liberty, Green, so the criticism goes, under the disguise of a definition, recommends social ideals and principles such as social justice. The validity of such arguments is not the focus of my concern. I argue, instead, that contemporary efforts to defend social legislation, the welfare state, and socialism from the claims of negative (...) freedom overlook the important interplay between context, conceptual mutability, and conceptual relationality in the construction of normative political arguments. Green’s conceptualization of positive freedom unveils just such interplay. To reclaim the vital conceptual-normative role of positive freedom in the tradition of liberalism and its contemporary discourse is the task of this paper. (shrink)

I examine Rousseau’s claim that any given will can be either itself or another, and cannot be commuted , through an investigation of liberty and legitimacy in The Social Contract, with respect to which Rousseau elaborates his notion that we prescribe laws to ourselves. Through an examination of the logic of the general will, I attempt to show that, while the theory of legitimacy is radical, it is faced with serious problems that concern the identification of the we that (...) is supposed to be prescribing laws to itself, and that when we are supposedly doing so, the identity of the will is far from clear. As soon as you are obliged to see with others’ eyes, their wills must be your own. — Rousseau, Emile. (shrink)

Liberty and Law examines a previously underappreciated theme in legal history―the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm (...) of human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government. Several kinds of permissive natural law were identified. Permission could be positive or negative, depending on whether it was specifically conceded by a legislator or only tacitly allowed. It could free from sin or merely remit some temporal punishment that was due. It could commend some conduct without commanding it or permit some evil without condoning it. Medieval canonists used the concept of permissive natural law to harmonize the discordant texts that they found in their sources; William of Ockham found it a powerful tool in his defense of Franciscan poverty against papal criticisms; for Richard Hooker it justified both the constitutional structure and the ritual practices of the Anglican church; John Selden used it to uphold the inviolability of contracts, most importantly the contract of government; Hugo Grotius made it a central theme in his treatment of the conduct permissible in waging war; in the eighteenth century Jean Barbeyrac and Jean-Jacques Burlamaqui associated the idea with the emerging doctrine of natural rights. In Liberty and Law, Tierney has presented us with a magisterial and provocative way of interpreting legal history. (shrink)

Private law and regulation are constantly involved in the evaluation of conflicts of interest, judging some of them salutary, with others requiring adjustment. Focusing on the question of conflicts of interest allows us to clarify our vision of when such adjustment is appropriate and, more specifically, when the law should supply an infrastructure for cooperative behavior. Thus, the prism of conflicts of interest provides a lens through which to view basic legal problems that turn on whether individual actors will be (...) deemed responsible to some joint interest or whether they will be at liberty to pursue their individual interests despite the adverse effects of such activity on others. This article proposes a conflicts of interest perspective for examining contract law and its immediate surroundings. It suggests a map of conflicts of interest along three axes: the remedial axis; the axis of positive duties to avoid conflicts; and the axis of the transition from independence to loyalty. Applying the map to contract doctrine, the article examines a number of contract doctrines including: remedies for breach of contract; modification; conditions; good faith in performance; and formation. The article goes on to apply the map of conflicts to two complex fact situations: corporate acquisitions and corporate bankruptcies. The analysis underscores the fact that conflicts of interest rules do not simply protect existing interests, but also contribute to the very constitution of those interests. Recognizing the constitutive role of legal rules raises questions about our ability to determine interests ex ante and thus calls for a more nuanced approach to gauging the incentive effects of a legal regime. (shrink)

Liberty-restricting measures have been implemented for centuries to limit the spread of infectious diseases. This article considers if and when it may be ethically acceptable to impose selective liberty-restricting measures in order to reduce the negative impacts of a pandemic by preventing particularly vulnerable groups of the community from contracting the disease. We argue that the commonly accepted explanation—that liberty restrictions may be justified to prevent harm to others when this is the least restrictive option—fails to adequately (...) accommodate the complexity of the issue or the difficult choices that must be made, as illustrated by the COVID-19 pandemic. We introduce a dualist consequentialist approach, weighing utility at both a population and individual level, which may provide a better framework for considering the justification for liberty restrictions. While liberty-restricting measures may be justified on the basis of significant benefits to the population and small costs for overall utility to individuals, the question of whether it is acceptable to discriminate should be considered separately. This is because the consequentialist approach does not adequately account for the value of equality. This value may be protected through the application of an additional proportionality test. An algorithm for making decisions is proposed. Ultimately whether selective liberty-restricting measures are imposed will depend on a range of factors, including how widespread infection is in the community, the level of risk and harm a society is willing to accept, and the efficacy and cost of other mitigation options. (shrink)

This chapter contains sections titled: A Lockean Argument for the Right to Liberty Our Rational Moral Competence From Liberty to Lockean Contractarianism.

This book features new approaches to social contract theory. Whereas traditional social contract theories and their adaptations in the twentieth century were developed for fairly homogeneous societies, societies in the twenty-first century often are characterized by conflicting first-order directives that stem from deep moral, political, religious, and cultural diversity. To address such diversity and the complexities of contemporary societies, new approaches (including formal approaches) to social contract theory have emerged that re-envision the social contract for a fragmented and sometimes polarized, (...) yet interdependent social world. New social contract theory explores how, in a world of continuous disagreement on questions of justice, in particular the ideals of liberty and equality, society can not only progress, but also flourish and become more robust and open in its social fabric. This book brings together, for the first time, defenders and discussants of new social contract theory. It includes contributions by eminent and emerging scholars in this field. The book clarifies the distinct features of new social contract theory and provides a valuable starting point for discussion of this novel movement in social contract theory. (shrink)

How can we establish a political/legal order that in principle does not require the human flourishing of any person or group to be given structured preference over that of any other? Addressing this question as the central problem of political philosophy,_ Norms of Liberty_ offers a new conceptual foundation for political liberalism that takes protecting liberty, understood in terms of individual negative rights, as the primary aim of the political/legal order. Rasmussen and Den Uyl argue for construing individual rights (...) as metanormative principles, directly tied to politics, that are used to establish the political/ legal conditions under which full moral conduct can take place. These they distinguish from normative principles, used to provide guidance for moral conduct within the ambit of normative ethics. This crucial distinction allows them to develop liberalism as a metanormative theory, not a guide for moral conduct. The moral universe need not be minimized or morality grounded in sentiment or contracts to support liberalism, they show. Rather, liberalism can be supported, and many of its internal tensions avoided, with an ethical framework of Aristotelian inspiration—one that understands human flourishing to be an objective, inclusive, individualized, agent-relative, social, and self-directed activity. (shrink)

The "art of being free" is an essential part of democracy. It involves, Mark Reinhardt believes, bringing into being the multiple spaces in and practices through which individuals and groups help to constitute their lives, their selves, their worlds. Americans are presently witnessing a contraction of officially sanctioned spaces for citizen action. It is now crucial, Reinhardt argues, to identify ways of opening new spaces for the direct practice of democratic politics. Reinhardt treats the writings of Alexis de Tocqueville, Karl (...) Marx, and Hannah Arendt as exemplary sources for an expansion of political possibility. These writers indicate where and how the new spaces can be brought into being, and they reveal acts of making space as some of the prime moments of politics. Reinhardt's extended readings of these writers, never previously treated together, are quite unlike the familiar understandings of their thought. "Taking liberties," he brings the literary and political sensibility usually associated with postmodernism to a sympathetic if critical encounter with eminently modern thinkers. The result is a strong and idiosyncratic book, accessible and stylish, that mixes acute readings of canonical thinkers with more practical applications and illustrations. Reinhardt combines attention to textual detail and nuance with concern for contemporary politics, discussing as an unusually inventive example the AIDS activist group ACT UP. (shrink)

The paper tries to relate classical liberal intuitions about rights and liberties to some of the more formal discussions of the putative impossibility of a Paretian liberal. Its focus is on the interpretation of formal modelling rather than on formal analysis. The theoretical concepts of the formalized approaches more often than not distort the meaning of the non-formalized concepts of classical liberal theory. Using proper explications of the concepts of liberties and rights respectively the alleged paradoxes of liberalism lose their (...) paradoxical character. (shrink)

Renouvier's place in nineteenth-century French thought -- Renouvier's critique of Comtean positivism -- Renouvier and mathematics -- Renouvier on evolution -- Kant, free will, and the social contract -- Hypothesis and convention in Renouvier's philosophy of science.

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)

Benjamin Constant and Jean-Jacques Rousseau were both Swiss-French political thinkers who had a significant influence on the subsequent development of political thought. Constant is known not only as a political philosopher but also as an active politician, who today is considered one of the founding fathers of liberalism. Rousseau, in turn, is considered one of the most controversial thinkers of the Enlightenment, who has been accused of laying the foundation for many revolutionary political movements and repressive regimes. The main objective (...) of this work is to illustrate Benjamin Constant’s liberal objections to the political philosophy of Jean-Jacques Rousseau. First, it is important to focus on Rousseau’s main ideas for the full disclosure of the topic. Likewise, it is also crucial to take into account the historical context, which will be useful for understanding the motives for the formation of Constant’s liberal views. Thus, in the first part of the work, we will briefly consider the main concepts developed by Rousseau in his book, The Social Contract, such as popular sovereignty, the state of nature, and direct democracy. In the second part, we will analyze the main political concepts of Constant and his critique of Rousseau, based on his books The Liberty of the Ancients Compared with that of the Moderns and Principles of Politics Applicable to All Governments. (shrink)

Beccaria’s penal philosophy hinges on the doctrinal paradigm of liberty through law. Inconceivable in the absence of laws and unattainable in the presence of arbitrary powers, liberty is profiled as the legal situation of the person who may act, within the sphere of what is not forbidden and not bound, without suffering illicit interference from private individuals or organs of the state. Thus, the form of law becomes an essential matter in the construction of the political space suitable (...) for free living. In the analysis proposed in this article, the notion of “political liberty”–which Beccaria takes from Montesquieu–is declined in relation to the legal order, criminal law and the social contract. (shrink)

This article reviews Jan Narveson and James Sterba’s co-authored book Are Liberty and Equality Compatible?. Sterba argues that negative liberty requires that the poor have a right not to be interfered with in taking from the rich to fulfill their basic needs. Narveson argues that negative liberty means that people agree not to coerce others and that taking from anyone violates negative liberty. The authors not only differ on this point, but, as contractarians, on what terms (...) reasonable people would likely agree to in a “social contract.”. (shrink)

Although Catharine Macaulay was a contract theorist and early feminist her philosophy is not based on a concept of liberty like that of Hobbes, but on a notion of individual liberty as self government close to that accepted by Mary Astell. This raises the question of whether criticisms of liberal feminism which assume that it is rooted in Hobbes's suspect notion of freedom and consent may miss there mark.

An essential and neglected distinction between contract and administrative law is in how each conceives of the Crown as a juristic person. This article explores the extent of this distinction, and its implications for the rule of law and the separation of powers. It offers explanations—historical, jurisprudential and pragmatic—for why contract law conceives of the Crown as a corporation aggregate with the powers and liberties of a natural person, and why administrative law disaggregates the State into named officials.

Most liberals agree that governments should protect certain basic liberties, such as freedom of speech, freedom of religion and freedom of the person. Liberals disagree, however, about whether free market rights should also be protected. By “free market rights,” we mean those rights typically associated with laissez-faire economic systems such as freedom of contract, a right to market returns, and claims to privately own the means of production.We do not use the phrase “economic liberties,” as Tomasi does, because it does (...) not distinguish between the “economic rights” defended by classical liberal and those defended by socialists. Those on the right often see such freedoms as core liberal commitments, while those on the left argue that an economic system should be organized to protect the interests of the less advantaged members of society. If free market rights should be protected, then most existing societies are unjust. These societies fail the liberal standard in the same ways as th .. (shrink)

This is a study of the treatment of library patron privacy in licenses for electronic journals in academic libraries. We begin by distinguishing four facets of privacy and intellectual freedom based on the LIS and philosophical literature. Next, we perform a content analysis of 42 license agreements for electronic journals, focusing on terms for enforcing authorized use and collection and sharing of user data. We compare our findings to model licenses, to recommendations proposed in a recent treatise on licenses, and (...) to our account of the four facets of intellectual freedom. We find important conflicts with each. (shrink)

This paper presents four arguments in favour of respecting Ulysses Contracts in the case of individuals who suffer with severe chronic episodic mental illnesses, and who have experienced spiralling and relapse before. First, competence comes in degrees. As such, even if a person meets the usual standard for competence at the point when they wish to refuse treatment, they may still be less competent than they were when they signed the Ulysses Contract. As such, even if competent at time 1 (...) and time 2, there can still be a disparity between the levels of competence at each time. Second, Ulysses Contracts are important to protect people’s most meaningful concerns. Third, on the approach defended, the restrictions to people’s liberty would be temporary, and would be consistent with soft paternalism, rather than hard paternalism: the contracts would be designed in such a way that individuals would be free to change their minds, and to change or cancel their Ulysses Contracts later. Finally, even if one rejects the equivalence thesis, this is still consistent with the claim that, in particular cases, it can be as wrong to allow a harm as to do a harm. Nevertheless, controversies remain. This paper also highlights several safeguards to minimise risks. Ultimately, we argue that people who are vulnerable to spiralling deserve a way to protect their autonomy as far as possible, using Ulysses Contracts when necessary. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Procreative Liberty, Biological Connections, and MotherhoodMargaret Olivia Little (bio)Given the complex and dramatic array of issues currently facing us in reproductive ethics, bioethicists working on the topic might be forgiven feelings of trepidation when they cast their minds toward the next century. Currently, technologies such as artificial insemination by donor (AID), once the source of intense controversy, are used on a routine basis; mainstream newspapers carry advertisements offering (...) “excellent compensation” to ova “donors;” courts are arguing whether women who serve as gestational or “surrogate” mothers have any parental rights; and proposals resurface to jail pregnant women who take street drugs. Sorting out which developments are to be welcomed and which are to be resisted—and why—will require us not only to clarify some of our most basic value commitments, but also to reflect on our understanding of concepts, such as motherhood, that we previously had the luxury of thinking obvious. Let me highlight two issues I think we will be forced to confront as we try to navigate the ethics of reproduction into the twenty-first century—namely, the value of biological connection and the meaning of motherhood.Procreative Liberty and the Value of Biological ReproductionPeople who are unable to conceive a child or to carry one to term now face a variety of extraordinary means of procreative assistance: they can buy sperm and ova, undergo in vitro fertilization, or contract another woman to gestate and give birth to the baby. Those who are enthusiastic about these new technologies [End Page 392] and arrangements often explain their support in terms of many people’s deep desire or even right to bear children biologically related to them; those who are suspicious of the techniques often explain their resistance by criticizing our culture’s “pronatalist” emphasis on biological rather than social relations with children. Focusing on such clear-cut positions, though, undersells the complexity and difficulty of the issues involved. Few want to dismiss altogether the importance of biological connection; but the question remains, what measure of importance should it be granted? Or again, while most agree that procreative liberty is one of our most fundamental rights, the question remains, whose procreation, in what context, and by which means? The truly difficult questions, that is, pertain to how we are to value biological relatedness and how we are to draw the contours of procreative liberty.One perspective emerging in current debates urges an expansive answer to these questions, arguing that the new reproductive technologies and arrangements deserve constitutional protection. Procreative liberty is deeply important, it is urged, given how fundamental the decision to have or to refrain from having children is to our sense of dignity, identity, and meaning of life. But if we recognize a right to reproduce coitally, it is claimed, we should also recognize a right to reproduce noncoitally: people with infertile partners should no more be barred from exercising their right to “beget, bear, and raise” children biologically linked to them by using surrogate arrangements or AID than those who are blind should be barred from exercising their right to written information by using Braille texts. 1The fundamental question is whether the value of biological reproduction persists when pursued outside of the intimacies of marriage and family that form its traditional home. The new reproductive technologies and arrangements, after all, represent a departure not simply because they are noncoital but because they involve reproduction with strangers, under contract, and for pay. One question that demands our reflection, then, is whether the procreative liberty we value attaches to individuals atomistically, as it were, or to individuals only insofar as they are in relationships of an intimate and ongoing nature.Other developments on the horizon sound a restrictive note about procreative liberty. Many IVF clinics, for instance, have denied services to would-be single parents or to gay or lesbian couples. Some legislators have proposed making certain welfare payments for women conditional upon their use of contraceptives such as Norplant—an odd view if one regards procreative liberty as a fundamental right. After all, we do not usually make the receipt of public aid contingent on waiving a constitutional right. (Imagine the government stipulating that... (shrink)

The paper critically discusses the deontological interpretation of Hobbesian contractual obligation which has been advocated by commentators such as Brian Barry, D. D. Raphael and Bernd Ludwig. According to this interpretation, the obligation to comply with contracts and covenants is fundamentally different from the obligation to observe the laws of nature. While the latter is taken to be a prudential obligation that is logically dependent upon the individual aim of self-preservation, the former is viewed as an absolute or unconditional moral (...) obligation that solely follows from the fact that the individual has bound himself to the performance or omission of certain actions. As can be shown, the deontological interpretation suffers from inherent problems and does not provide an appropriate interpretation of the Hobbesian texts. In particular, it can be demonstrated that the attempt to use Hobbes's concept of 'freedom as deliberation' in order to explain how obligations arise from contractual agreements faces serious difficulties. (shrink)

This book takes the thinking of Quentin Skinner, Philip Pettit and J. G. A. Pocock on republican liberty and explores the way in which this idea of liberty can be used to illuminate educational practice. It argues that republican liberty is distinct from both positive and negative liberty, and its emphasis on liberty as non-dependency gives the concept of liberty a particularly critical role in contemporary society. Each chapter formulates and expounds the idea that (...) an empire of liberty requires the existence of what are termed 'liberty-bearing agents', and shows how education - with a particular emphasis on knowledge - is needed to foster the human powers which allow people to become liberty-bearing. It is also emphasised, however, that republican liberty is non-perfectionist and non-eudaimonic: the core values enshrined in an empire of liberty centre on non-dependency rather than the promulgation of a certain way of life. Drawing on prominent seventeenth century contract theorists, the link between liberty and authority is explained, suggesting that appropriate authoritative structures need to underpin the provision of education, and especially schooling, if educational practice devoted to the pursuit of liberty is to flourish. Liberty and Education will be of value to both educational theorists unfamiliar with republican theory, as well as republican theorists interested in how their theory might play out in education. It will also be of interest to researchers and students from the fields of politics and the philosophy of education. (shrink)

Everybody supports freedom—even authoritarians, though what they call freedom looks suspiciously like bondage. Rousseau begins The Social Contract with a flourish: ‘Man is born free, and everywhere he is in chains.’ He ends up by trying to persuade us that the chains, the restraints of law and organized society, are necessary for true freedom. He wants us to believe that true freedom, the freedom essential for human existence, is not the happy-go-lucky freedom of Liberty Hall, do as you like, (...) but the straight and narrow path of duty, of conformity to law. The universal popularity of the idea of freedom does not mean that everybody is really agreed about it. Plato, Rousseau, Hegel and his followers—they all talk of a true or genuine freedom, but they oppose this to Liberty Hall, to doing as you please. (shrink)

Levine’s Kantian reading of Rousseau’s social contract is a legitimate enterprise. Accordingly, he rightly distinguishes the a priori from the a posteriori elements of the work. The former becomes the ground of liberty, rebaptized as autonomy. The latter is devoted to a discussion of the relation of theory to practice.

Argues that like more conservative feminist writers, Gabrielle Suchon and Mary Astell, writing earlier in the Eighteenth Century, Macaulay's concept of liberty is closely tied to virtue and involves free self government according to reason. Unlike these earlier writers from this concept of liberty she deduces the rationality of democratic republican government. Thus the grounds on which she builds her republicanism involve a very different concept of rational self interest to that usually assumed to ground social contract theory. (...) For virtue and the genuine self interest of rational beings are taken to coincide. (shrink)

In The Libertarian Idea, Jan Narveson explains his interpretation of social contract theory this way: "The general idea of this theory is that the principles of morality are (or should be) those principles for directing everyone's conduct which it is reasonable for everyone to accept. They are the rules that everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone." It is plain, here, (...) that Narveson believes that social contract is to provide justification -- a foundation, in fact -- for 'the principles of morality'. The burden assumed in this essay is to examine how far Narveson has succeeded in making this foundational claim plausible. (shrink)

anarchist periodical Liberty (Boston 1881–92, New York 1892–1908) over the propriety of electoral politics, it is necessary to understand the prevailing view of the State expressed by that nineteenth-century tradition.1 The most fundamental and integrating theme of that tradition was the primacy of individuals, which implied an extreme respect for their sovereignty. Accordingly, individualist-anarchists wished to eliminate all but defensive force from human interaction. Tucker proposed what he called “a society by contract” to replace the society by force he (...) saw around him. (shrink)

Using the economic concepts of rational self-interest, pareto-optimality, [[sic]] public goods, public capital and investment, and contracts, this book attempts to explain and justify the origins of rights and property, and to analyze some of the problems and failures of the U.S. political system. Eschewing a political theory based upon a "true" or "correct" theory of justice, Buchanan claims that political institutions should satisfy people’s actual wants. In particular, he claims that political rights and distributions of private and public goods (...) should be those that free persons in a state of nature would agree to and contract into, given complete information about themselves and their relationships. Once these rights have been agreed upon, then political institutions must protect this contractual agreement and provide public goods that persons want. (shrink)

Social contract theory enjoys a long history in moral and political philosophy. Since the European Enlightenment, social contract theory has become one of the most important traditions in moral and political philosophy. This chapter provides a brief introduction to central concepts in social contract theory and their development over time. Most importantly, the chapter clarifies some of the distinct features of new approaches to social contract theory (or “new social contract theory” for short) that have evolved in the twenty-first century (...) and are most suitable for capturing the circumstances of contemporary societies, even if new social contract theory does not constitute a unified theoretical position but is best considered as a family of approaches, methods, and topics. The chapter also provides an overview of the contributions to this book and their connections both methodologically and thematically. (shrink)

The success of digital COVID-19 contact tracing requires a strategy that successfully addresses the digital divide—inequitable access to technology such as smartphones. Lack of access both undermines the degree of social benefit achieved by the use of tracing apps, and exacerbates existing social and health inequities because those who lack access are likely to already be disadvantaged. Recently, Singapore has introduced portable tracing wearables (with the same functionality as a contact tracing app) to address the equity gap and promote public (...) health. We argue that governments have an ethical obligation to ensure fair access to the protective benefits of contract tracing during the pandemic and that wearables are an effective way of addressing some important equity issues. The most contentious issues about contact tracing apps have been the potential infringements of privacy and individual liberty, especially where the use of apps or other technology (such as wearables or QR codes) is required for access to certain spaces. Here we argue that wearables, as opposed to apps alone, will make a digital contact tracing mandate more practical and explain some conditions under which such a mandate would be justified. We focus on Singapore as a case study that has recently deployed contact tracing wearables nationally, but also reference debate about wearables in Australia and New Zealand. Our analysis will be relevant to counties trialling similar portable tracing wearables. (shrink)

Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and despoil others. Everyone, (...) whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners (though the latter in fact benefit greatly from the property rights of owners). (shrink)

Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and despoil others. Everyone, (...) whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners. (shrink)

Theories of social justice are necessarily abstract, reaching beyond the particular and the immediate to the general and the timeless. Yet such theories, addressing the world and its problems, must respond to the real and changing dilemmas of the day. A brilliant work of practical philosophy, Frontiers of Justice is dedicated to this proposition. Taking up three urgent problems of social justice neglected by current theories and thus harder to tackle in practical terms and everyday life, Martha Nussbaum seeks a (...) theory of social justice that can guide us to a richer, more responsive approach to social cooperation. The idea of the social contract--especially as developed in the work of John Rawls--is one of the most powerful approaches to social justice in the Western tradition. But as Nussbaum demonstrates, even Rawls's theory, suggesting a contract for mutual advantage among approximate equals, cannot address questions of social justice posed by unequal parties. How, for instance, can we extend the equal rights of citizenship--education, health care, political rights and liberties--to those with physical and mental disabilities? How can we extend justice and dignified life conditions to all citizens of the world? And how, finally, can we bring our treatment of nonhuman animals into our notions of social justice? Exploring the limitations of the social contract in these three areas, Nussbaum devises an alternative theory based on the idea of capabilities. She helps us to think more clearly about the purposes of political cooperation and the nature of political principles--and to look to a future of greater justice for all. (shrink)

In this reply to Professor Hodapp's criticism of my social contract theory, I focus on the misinterpretations I believe Professor Hodapp makes of the social contract tradition as well as my version of the contract. By misinterpreting the underlying purpose of social contract theory, he neglects the contract's heuristic or functional dimension, something that leads him to downplay the importance of the contract as a conceptual catalyst. And by adopting an overly narrow notion of rationality, he imagines circularity where none (...) exists. Later, Professor Hodapp questions the effect of the contract upon individual liberties, and in doing so broaches a critical issue. But I attempt to show that his concerns are eliminated by close attention to the theory itself. (shrink)

In order to prevent the rapid spread of COVID-19, governments have placed significant restrictions on liberty, including preventing all non-essential travel. These restrictions were justified on the basis the health system may be overwhelmed by COVID-19 cases and in order to prevent deaths. Governments are now considering how they may de-escalate these restrictions. This article argues that an appropriate approach may be to lift the general lockdown but implement selective isolation of the elderly. While this discriminates against the elderly, (...) there is a morally relevant difference—the elderly are far more likely to require hospitalisation and die than the rest of the population. If the aim is to ensure the health system is not overwhelmed and to reduce the death rate, preventing the elderly from contracting the virus may be an effective means of achieving this. The alternative is to continue to keep everyone in lockdown. It is argued that this is levelling down equality and is unethical. It suggests that in order for the elderly to avoid contracting the virus, the whole population should have their liberty deprived, even though the same result could be achieved by only restricting the liberty of the elderly. Similar arguments may also be applied to all groups at increased risk of COVID-19, such as men and those with comorbidities, the obese and people from ethnic minorities or socially deprived groups. This utilitarian concern must be balanced against other considerations, such as equality and justice, and the benefits gained from discriminating in these ways must be proportionately greater than the negative consequences of doing so. Such selective discrimination will be most justified when the liberty restriction to a group promotes the well-being of that group (apart from its wider social benefits). (shrink)

There is widespread agreement among political philosophers that there is a core set of civil and political liberties that ought to be given special protections by any state. In contrast, there is significant disagreement about whether (and which) economic liberties deserve the same level of protection and priority. To what extent should freedom in economic activities be protected by and from the government? To what extent is it justifiable for government to interfere with economic activities for the sake of equalizing (...) opportunities and protecting the welfare of society’s vulnerable? John Rawls famously held that only a narrow range of economic liberties are basic liberties deserving special protections, though he never offered a full defense of that claim. In _Free Market Fairness_ John Tomasi argued against Rawls, claiming it follows from Rawls’s own assumptions that we ought to protect a broad range of economic liberties as basic liberties. This paper attempts to provide the missing argument in favor of Rawls’s position in this debate and against Tomasi’s. First, I argue for a novel interpretation of Rawls’s criterion for basic liberties. Second, I use that interpretation to argue that Rawls was correct and consistent to exclude contract rights and productive property rights from the scheme of basic liberties. (shrink)

Introduction -- Coercion, rational self-interest, and obligation -- The authority of law -- Political obligation -- Contractarianism -- The Hobbesian analysis of contracts under coercion : a critique -- Final remarks.

Like Kant at his time, Jürgen Habermas wants to encourage the reader to use his „reasonable liberty“. There is no doubt, that the philosophical positions of Kant on the one hand and of Hegel on the other hand hold, until today, a key role in the development of the „discourse of modern age“. In order to oppose a short-circuited synthesis of both systems, which are obliged to the idea of liberty quite differently, this essay demonstrates the substantial differences (...) regarding to elementary concepts like peculiarity of the individual will, law and legislation, people and sovereignty of the people. That both philosophers differ in their interest of questioning becomes quite clear regarding to the citizen/state relation. While Hegel tries to describe the reality of the state as a „moral universe“ and therefore as „reality of reason“, Kant is interested in knowing about the potential state togetherness of individuals which have experienced in them the „radical evil“. The differences concerning the estimation of the „subjective“ individual will in its relationship to the „objective“ will of „generality“, concerning also the (Rousseauian) concept of contract and the citizens as „co-legislators“ are culminating in the relationship between „law“ and „morality“. Whereas Kant (wrongly) ignores ethos and history, Hegel is lacking the concept of „intersubjective communication“ (so Habermas states). From both insufficiencies conclusions are resulting which are important for coping with the actual difficulties with „inclusion“ and „integration“. (shrink)

The adversary system and the practice of law -- The rule of law -- The moral force of law -- Statutes -- Precedents -- Constitutional interpretation -- Natural law and legal positivism: classical perspectives -- Formalism and legal realism -- Morality and the law -- International law -- Law and economics -- The justification of punishment -- The rights of defendants -- Sentencing -- Criminal responsibility -- Compensating for private harms: the law of torts -- Private ownership: the law of (...) property -- Private agreements: the law of contract -- Church and state -- Personal liberty and privacy -- Freedom of speech -- Equality. (shrink)

The slavery contract is not a rights violation since the right not to be enslaved and the right not to give out a benefit are waivable and the conjunction of their voluntary waiver is not itself a rights violation. The case for the contract being pejoratively exploitative is not clear. Hence given the general presumption in favor of liberty of contract, such a transaction ought to be permitted. The contract is also not invalid on the grounds that the wrongdoer’s (...) consent to it necessarily reflects involuntariness or irrationality or on the grounds that it is logically impossible for the wrongdoer to satisfy the contract. Allowing such contracts may not have desirable consequences, but for the liberal this by itself is not a sufficient reason against allowing them. One case where the slavery contract might be relevant is where a victim’s agent or the state agrees to waive its claim to harsh punishment in return for the offender agreeing to be enslaved. (shrink)

* one of the great philosophical works of the eighteenth century * the rare and valuable first edition, reprinted in its entirety 'Of the countless reprints of Scottish Enlightenment works that Thoemmes has given us, none is more welcome than this. The posthumous System was not only Hutcheson's own last word on the full range of topics that he included under the rubric "moral philosophy", but also a monumental event in the book history of the Scottish Enlightenment itself.' - Newsletter (...) of the 18th-Century Scottish Studies Society Francis Hutcheson (1694-1746) was a key figure in the Scottish Enlightenment and one of the eighteenth century's most influential philosophers. He taught Adam Smith and he greatly influenced Hume and Bentham. His theory that the only proper actions are those which will generally benefit society prepared the way for the English utilitarians. His views were extensively discussed throughout Britain and ranged as far as the American colonies, where his political theory was adopted by revolutionaries. He is best known for his contribution to moral theory, being the chief exponent of the 'moral sense' doctrine which, following Shaftesbury, emphasized feeling rather than reasoning as the source of judgements of virtue and vice.A System of Moral Philosophy was written as early as 1738, but added to and altered by Hutcheson throughout his life. Published posthumously in 1755 by Hutcheson's son, Francis the younger, the System is Hutcheson's longest work and the fullest explanation of his method. Giving a comprehensive account of morality, it includes discussions of human nature; our duties to God, to each other and ourselves; the supreme good; civil liberty; rights; contracts; marriage; the rights and duties of parents; and the laws of peace and war. The work also contains an argument against slavery that was reprinted in colonial Philadelphia and helped give academic weight to the anti-slavery movement. William Leechman, a friend of Hutcheson and Professor of Divinity at Glasgow, contributes a highly valuable biography. This edition also includes a new introduction by Daniel Carey. (shrink)

My dissertation comprises three inter-related chapters, all of which explore the nature of work law and critically analyze the prevailing emphasis on matters of contract. The Escape Plans of Mill and Jefferson: I discuss these thinkers’ unsuccessful “escape plans” to minimize wage work. Mill advocated cooperative, worker-owned firms, while Jefferson favored farming the vast American frontier. I explore whether, if realized, either proposal would have satisfied the demands of justice. I argue that such proposals are normatively deficient because they lead (...) us mistakenly to assume that so long as the law provides alternatives to wage labor, it can justly leave work relationships in an unregulated, Dickensian state. In reply, I contend that we have no just alternative to engaging in the messy and difficult task of regulating the workplace. Revising the Roles of Master and Servant: I critically examine the claim that work law is best understood as part of contract law, arguing that this view is neither descriptively nor normatively instructive. Rather than understanding work law as a set of restraints on freedom of contract, we should see it as creating and defining special relationships, much like the codified definitions of marriages and corporations. I trace the development of work relationships through the common law of “master and servant” and more recent statutory modifications. I argue that the history and present form of work law are not consistent with the contract-centered view of work law as “interfering” with an otherwise free labor market. Competing Ideologies and the End of the Lochner Era: I examine Howard Gillman’s critique of the view that early-20th Century Supreme Court Justices sought to advance policy preferences rather than interpret the law. Gillman reconstructs the legal basis for their decisions, thus undermining the claim that they merely pursued laissez faire policies. However, Gillman then claims that the Justices who overruled liberty-of-contract in West Coast Hotel had no principled basis for their decisions. In response, I argue that West Coast Hotel was not only based on a plausible interpretation of constitutional law, but also the best outcome with respect to justice. (shrink)

The feminist movement remains fundamentally divided over the issue of surrogacy. Within the confines of this article it is argued that the inadequacy of positions on both sides of the debate rests upon their common tendency to deal with the ethical consequences of surrogacy for isolated agents, without sufficient concern for the broader social implications for all pregnant women in society. In order to clarify the issues involved, feminist theorists must consider the implications of surrogacy in a broader social spectrum. (...) Such an analysis will illustrate that the two-person dichotomous model of the maternal-foetal relationship proposed by the surrogacy arrangement has hugely prejudicial effects on the treatment received by non-contract mothers when they interact with agents of certain social institutions whose prior contact with surrogate mothers has made them more susceptible to conceiving the maternal-foetal relationship as fundamentally disconnected. In a climate of increased medical surveillance and intervention in the non-clinical context of pregnancy, the dangers of adopting this dichotomous model are palpable. Given the oppressive physical and psychological effect that this would have upon the liberty of the majority of pregnant women in society, this article argues that the feminist movement must abandon any promotion of the abstracted model of the mother-foetus relationship that is implicit in its arguments in favour of surrogacy. (shrink)