As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient . The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared. Recent research in New Zealand shows that despite the presence of an employment contract, there appears (...) to be a wide range of behaviours among sports doctors when an athlete requests that information about them be kept from team management. Many seem willing to honour requests to keep health information about the athlete confidential, thereby being in breach of the employment contract, while others insist on informing team management against the wishes of the athlete. There are a number of potential solutions to this dilemma from forcing doctors to meet their contractual obligations, to limiting the expectations of the employment contract. This paper suggests that at times it may be appropriate to do both, making the position of the doctor clearer and supporting the ability of this group to resist pressure by coaches and management through having a robust code of ethics. (shrink)

The author introduces the notions of crucial argument and crucial evidence in the philosophy of intellectual history (broadly construed, including the history of political thought). He will use these concepts and take sides in an important controversy in Hobbes studies, namely whether Hobbes holds a prudential or a deontological theory of contractual obligation. Though there is textual evidence for both readings, he will argue that there is especially relevant evidence - crucial evidence - for interpreting Hobbes's account in (...) a deontological fashion. (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 paper argues that throughout his intellectual career, Hobbes remains unsatisfied with his own attempts at proving the invariant advisability of contract-keeping. Not only does he see himself forced to abandon his early idea that contractual obligation is a matter of physical laws. He also develops and retains doubts concerning its theoretical successor, the doctrine that the obligatoriness characteristic of contracts is the interest in self-preservation in alliance with instrumental reason - i.e. prudence. In fact, it is during (...) his work on Leviathan that Hobbes notes the doctrine's main shortcoming, namely the limitation of its dialectical potential to cases in which contract-breakers are publicly identifiable. This essay shows Hobbes's doubts about his Leviathan's treatment of contractual obligation by way of a close reading of its central 15 th chapter and an analysis of some revealing shifts between the English Leviathan and the Latin edition. The paper ends by suggesting that Hobbes's awareness of the flaws at the heart of his political philosophy helps account for some striking changes in his latest writings. (shrink)

In this article I introduce the notion of crucial evidence and I use it to shed light on an ongoing scholarly controversy in Hobbes studies, namely whether Hobbes holds a prudential or a deontological theory of contractual obligation. Even though there is important evidence for both readings, I argue that there is crucial evidence for interpreting Hobbes’s account in a deontological fashion.

Contract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by a small number of basic moral (...) principles. At the theory level the author shows that contract law does have an underlying, and unifying structure. The second is a pedagogic purpose to provide for students the underlying structure of contract law. At this level of doctrinal exposition the author shows that structure can be referred to moral principles. Together the two purposes support each other in an effective and comprehensive study of contract law. This second edition retains the original text, and includes a new Preface. It also includes a substantial new essay entitled Contract as Promise in the Light of Subsequent Scholarship--Especially Law and Economics which serves as a retrospective of the work accomplished in the last thirty years, while responding to present and future work in the field. (shrink)

Although there is an increasing body of opinion that awards of damages for breach of contract should take account of the claimant’s performance interest, there has been little in the way of analysis of what the performance interest is. Commonly the concept is put forward as simply a reformulation or reconceptualization of the expectation interest, itself hitherto regarded as the one true contractual interest. Such thinking is flawed. A closer analysis of contract doctrine shows there to be two distinct (...) contractual interests; in receiving performance, and in being compensated for losses caused by non-performance. Receiving compensatory damages for non-performance is not the same as receiving performance. At present, this important difference is not fully appreciated, resulting in a failure to develop a principled approach to the claims that can be made following a breach of contract. Recognition of this distinction forces us to confront the fundamental question of how committed we are to the notion that contracts entail a right to performance. This article examines the distinction between these two interests, how the performance interest may be given effect by a damages award, and what the consequences of this analysis are for our understanding of the nature of contractual obligation. (shrink)

Will the new Rome I Regulation meet its goals - to improve the predictability of the outcome of litigation? - to bring certainty as to the law applicable and the free movement of judgments? - to designate the same national law irrespective of the country of the court in which an action is brought? The most important features of this instrument were outlined and discussed by distinguished legal experts from all over Europe and beyond at the conference "The Rome I (...) Regulation", held in Verona on March 2009. This first book in English on the Rome I Regulation contains the papers submitted to that conference. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they (...) are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)

Developments in contract law over the past century have led to the proliferation of interpretive theories according to which contract law is no longer a sui generisi legal branch. It is widely accepted that if there is a sui generis contractual obligation, it must somehow be based on the wills of the parties. But a new orthodoxy in contract theory claims that the role of the will of the parties in contract law has been progressively shrinking due to (...) judicial doctrines within the law of contract and also to general statutory provisions. It is no longer apparent that there is any interesting sense in which contractual liability is based on the will of the parties. Hence, so it is claimed, contract law has lost its sui generis nature. The article challenges this new orthodoxy. But rather than reverting to the old orthodoxy—the will theory of contracts (or its contemporary rendition, contract as promise)—it argues that we should resist being forced to choose between them. The article argues that the purpose of contractual liability is to support the practice of voluntary obligations. This view preserves an important connection between contractual liability and voluntary undertakings and meets the objections that beset the will theory. (shrink)

In European law, "non-contractual liability arising out of damage caused to another" is one of the three main non-contractual obligations dealt with in the Draft of a Common Frame of Reference. The law of non-contractual liability arising out of damage caused to another â?? in the common law known as tort law or the law of torts, but in most other jurisdictions referred to as the law of delict â?? is the area of law which determines whether (...) one who has suffered a damage, can on that account demand reparation â?? in money or in kind â?? from another with whom there may be no other legal connection than the causation of damage itself. Besides determining the scope and extent of responsibility for dangers of one's own or another's creation, this field of law serves to protect fundamental rights in the private law domain, that is to say horizontally between citizens inter se. Based on pan-European comparative research which annotates the work, this book presents model rules on liability. Explanatory comments and illustrations amplify the policy decisions involved. During the drafting process, comparative material from over 25 different EU jurisdictions has been taken into account. The work therefore is not only a presentation of a future model for European rules to come, but also provides a fairly detailed indication of the present legal situation in the Member States. (shrink)

This article challenges the generally accepted dogma that reliance is an essential ingredient in contractual formation. We argue that this view has resulted from an erroneous interpretation of the relevant case law, failure to cite contrary authority, and the elevation of often oblique judicial references to the need for reliance to the status of fundamental contractual principle. Contractual theory and clear policy reasons support our position that in English law a contractual obligation subsists when a (...) person, knowing of a promise, performs the stipulated act (or gives the promise) requested by the promisor, even though that person has not relied on the promise. (shrink)

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues that (...) the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

Argues that role obligations are not marginal, "that they are central to morality and should be taken seriously." "A 'role obligation' is a moral requirement, which attaches to an institutional role, whose content is fixed by the function of the role, and whose normative force flows from the role." Rejects what he calls the doctrine of perfect adequacy which holds that role obligations are both comprehensive and transparent. Although this may have been plausible at earlier times, it is clearly (...) implausible now. It is the implausibility of this doctrine which has led theorists to accept the standard view: which holds that role obligations that are noncontractual are extremely problematic. Once we reject the doctrine of perfect adequacy, however, we can see the significance of role obligations more clearly. [The content of role obligations, Hardimon admits, is indeterminate in the sense that it is subject to constructive interpretation. This suggests, however, that the obligations are not the source of their normative power, rather it is their justifying value which explains why some role requirements are obligatory. This is confirmed by the rest of the article.] One thing that should lead us to question the notion that we do not have obligations of this sort by considering what it would be like to have no noncontractual role obligations. [This, however, does not establish that the force of role obligations flows from the obligations themselves.] One objection to NCR obligations is that they may require acting in accordance with an unjust institution. However, the solution here is the same as with contractual obligations: unjust institutions and contracts do not bind. Moves on to identity. "What I am assuming is that most of us do at least tacitly conceive of ourselves as family members and citizens, that these self-understandings are central to our own general self-conception, and that we can, through reflection come to recognize that we do in fact conceive of ourselves in these ways. If this is correct, then abandoning the idea that we have noncontractual role obligations would require radical revision of our self-conception, for we cannot give up the idea of nonctractual role obligation without also ceasing to conceive of ourselves as family members and citizens. What, after all, would it mean to say that we conceive of ourselves as family members but regard oursleves as having no familial obligations whatsoever?...The upshot of the last two paragraphs is that the cost of abandoning our conception of ourselves as family members and citizens would be enormous." [The moral significance of identity is unclear here - is the only normative element loss of identity with rejection of role obligations? What of the case when one's identity is caught up in a role which requires one to act immorally in other ways?] If impressment is our concern, it shouldn't be, for role obligations are not like impressment - one is born into them, not impressed [how does this make a difference?]. Role must be reflectively acceptable to produce genuine obligations. "Determining whether a given social role is reflectively acceptable involves stepping back from that role in thought and asking whether it is a role people ought to occupy and play. Determining that a given social role is reflectively acceptable involves judging that it is meaningful, rational, or good." [Hence, some independent value is going to do all the work for role obligations - the normative force of a role does not flow from the role itself.] Concerning voluntary roles - even if we agree that voluntary acceptance is essential, this omits important elements of role identification. "The key component of the idea of identifying with a role is that of conceiving of oneself as someone for whom the norms, that is, the evaluative standards associated with a role, its rights, duties, virtues, ideals, and supererogations, have reason-giving force. Here is the idea. If you identify with a role, its norms will function for you as reasons. If you are a judge who identifies with the role of judge, the fact that this is something judges do will give you a reason for doing it." [Clearly a non-sequiter - conceiving of oneself as having a reason does not give oneself a reason for doing - there must actually be a reason for doing something. Moreover, the content of the role may be in question - and here we are to engage in constructive interpretation, which is just to say that we are to identify some underlying value and this will serve to justify and determine the content of the role. Refers to usage of "look, its your job" as basis for substantiating claims about the normative force of identity. "But here a basic point of similarity emerges between contractual and noncontractual role obligations. People can and do identify with their noncontractual roles and not just with their contractual roles. And when they do, assuming that the appropriate background moral conditions are in place, the fact taht they occupy these roles will provide them with reasons for carrying out the tasks of their noncontractual roles...The basic form of motivation provided by identification with contractual and noncontractual role obligations is the same.". (shrink)

In this article I introduce the notion of crucial evidence and I use it to shed light on an ongoing scholarly controversy in Hobbes studies, namely whether Hobbes holds a prudential or a deontological theory of contractual obligation. Even though there is important evidence for both readings, I argue that there is crucial evidence for interpreting Hobbes’s account in a deontological fashion.

The article examines the problem of compensation for the value of lost opportunity at the pre-contractual stage. It has been determined that such measure of recovery depends on the nature of pre-contractual liability. However, although the Supreme Court of Lithuania recognizes the possibility for the aggrieved party of pre-contractual negotiations to recover the value of lost opportunity, the motivation of the Supreme Court’s decisions is too incoherent. Moreover, Lithuanian courts have not yet adopted any methods of awarding (...) and calculation of the damages. The conclusion of the analysis is that in cases of breach of the general obligation of good faith in pre-contractual negotiations, the Supreme Court of Lithuania allows the recovery of lost opportunity, i.e. awards delictual damages. The same motivation applies even in certain cases where there is a possibility of broadening the scope of pre-contractual liability by applying contractual damages. (shrink)

_ Source: _Volume 30, Issue 2, pp 202 - 221 There is ongoing scholarly debate over the role that Hobbes’s laws of nature play in grounding the moral requirement that subjects obey the government under which they live. This essay demonstrates how the laws of nature, when understood as natural duties, may directly ground a moral duty to obey one’s sovereign without positing that subjects have undertaken any covenant of subjection. Such a grounding avoids the problems that attend accounts that (...) depend on tacit covenant and coerced covenant. The essay describes the advantages of a natural duty account of the laws of nature over accounts that regard those laws as contractual obligations entered through voluntary acts, or as legal obligations to treat the natural laws as literal laws legislated by a sovereign God. (shrink)

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the account. This account both (...) explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. configures fiduciary obligations as a species of contractual duties. The view that we call reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty. (shrink)

In this paper, I assess the role responsibility argument that claims suicidal agents have obligations to specific people not to kill themselves due to their roles. Since the plausibility of the role responsibility argument is clearest in the parent–child relationship, I assess parental obligations. I defend a view that says that normative roles, such as those of a parent, are contractual and voluntary. I then suggest that the normative parameters for some roles preclude permissible suicide because the role-related contract (...) includes a promise to provide continuing care and emotional support. I propose that as we have established criteria for morally acceptable reasons for cancelling, voiding, or amending a contract, we can apply these to the role responsibility argument to establish grounds for releasing a parent from his role-related and contractual obligations. Failure to fulfil one’s contractual roles may not be blameworthy, depending upon the circumstances. I propose the factors determining culpability in failure to fulfil one’s role-related obligations are: intention, voluntariness, diminished responsibility, mental capacity, and foreseeability. (shrink)

Neste texto, investiga-se a extensão diacrônica da comuni- dade moral no âmbito de teorias contratualistas. Para isso, examinam-se críticas à possibilidade lógica de sustentar obrigações em relação a gerações futuras e se abordam modelos argumentativos contratualistas de justificação dessas obrigações que se baseiam no interesse próprio e na imparcialidade. De acordo com essa pesquisa, a melhor defesa dessas obrigações se pode articular recorrendo a esse último tipo de contratualismo.

The second essay of Nietzsche's Genealogy of Morality (GM) offers a naturalistic and developmental account of the emergence of conscience, a faculty uniquely responsive to remembering and honoring obligations. This article attempts to solve an interpretive puzzle that is invited by the second essay's explanation of nonmoral obligation, prior to the capacity to feel guilt. Ostensibly, Nietzsche argues that the conscience and our concept of obligation originated within contractual (“creditor-debtor”) relations, when creditors punished delinquent debtors (GM II:5). (...) However, this interpretation, which I call the contractualist reading, is incoherent and subject to an insoluble bootstrapping problem. I argue instead that Nietzsche provides two accounts of nonmoral obligation in the second essay, and that the conscience originated in the morality of custom to track rule prohibitions (“I will nots” [GM II:3]), which Nietzsche conceives of as involuntary or reciprocal obligations that, unlike contractual debts, do not require the making of promises. (shrink)

This article makes a comparative examination of the widening spectrum of cases in which both tort law and contract law are employed, jointly or separately, to impose non-consensual liability on a contracting party. The article focuses on liability imposed on a contracting party either toward another contracting party or toward a third party for failure to perform an obligation that, on the one hand, is predicated on and arises from the contract, but, on the other hand, does not genuinely (...) originate in the consent of the liable party because it is external to her genuine intention. The primary objective of this article is to propose general guidelines for either choosing between tort law and contract law when imposing non-consensual liability on a contracting party or else allowing liability under both headings. These guidelines for the classification of non-consensual liability also bear on the preliminary question of whether to impose non-consensual liability at all and on the delicate interplay between contract and tort in general and particularly when the two lead to conflicting legal outcomes. (shrink)

Contractual moralists, such as Bowie and Donaldson, have argued that contractual agreement explains why corporations have a moral obligation towards the society in which they operate. They argue that a corporation’s moral obligation emerges from a hypothetical social contract that establishes its legitimacy to operate in society. Their assumption appears to indicate a logically necessary relationship between a corporation’s moral obligation and contractual agreement that establishes the corporation. We argue that there is no such (...) relationship: a corporation’s moral obligation does not necessarily emerge from a social contract. We suggest that instead of assuming that a corporation’s moral obligation emerges from a social contract, it should be said that a corporation’s moral obligation is sustained by a social contract. This helps answer the question of why corporations have a moral obligation towards the society where they operate in a better light. (shrink)

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the (...) contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages. (shrink)

This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to basic premises of contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately (...) enters a contract with the parents to transport them when the time comes. Is the second contract valid and enforceable, or does it fail for lack of consideration? This specific question—on which courts have split—implicates several important contract law doctrines. Moreover, it highlights a deep tension in our modern understanding of contractual obligation. This Article argues that adequately resolving the puzzle necessitates a general reconsideration of the relationship between rights and liability in contract law. Surprisingly, the best solution requires abandoning the foundational understanding that contract liability arises out of breach of a promisee’s right to performance. The puzzle thus offers a lens through which to examine—and even revise—the central concepts of modern contract law. (shrink)

Many academic philosophers and ethicists are appointed to teach ethics to medical students. We explore exactly what this task entails. In South Africa the Health Professions Council's curriculum for training medical practitioners requires not only that students be taught to apply ethical theory to issues and be made aware of the legal and regulatory requirements of their profession, it also expects moral formation and the inculcation of professional virtue in students. We explore whether such expectations are reasonable. We defend the (...) claim that physicians ought to be persons of virtuous character, on the grounds of the social contract between society and the profession. We further argue that since the expectations of virtue of health care professionals are reasonable, it is also sound reasoning to expect ethics teachers to try to inculcate such virtues in their students, so far as this is possible. Furthermore, this requires of such teachers that they be suitable role models of ethical practice and virtue, themselves. We claim that this applies to ethics teachers who are themselves not members of the medical profession, too, even though they are not bound by the same social contract as doctors. We conclude that those who accept employment as teachers of ethics to medical students, where as part of their contractual obligation they are expected to inculcate moral values in their students, ought to be prepared to accept their responsibility to be professionally ethical, themselves. (shrink)

_Postures of the Mind _was first published in 1985. Minnesota Archive Editions uses digital technology to make long-unavailable books once again accessible, and are published unaltered from the original University of Minnesota Press editions. Annette Baier develops, in these essays, a posture in philosophy of mind and in ethics that grows out of her reading of Hume and the later Wittgenstein, and that challenges several Kantian or analytic articles of faith. She questions the assumption that intellect has authority over all (...) human feelings and traditions; that to recognize order we must recognize universal laws—descriptive or prescriptive; that the essential mental activity is representing; and that mental acts can be analyzed into discrete basic elements, combined according to statable rules of synthesis. In the first group of essays—"Varieties of Mental Postures"—Baier evaluates the positions taken by philosophers ranging from Descartes to Dennett and Davidson. Among her topics are remembering, intending, realizing, caring, representing, changing one's mind, justifying one's actions and feelings, and having conflicting reasons for them. The second group of essays—"Varieties of Moral Postures" - explores the sort of morality we get when all of these capacities become reflective and self-corrective. Some deal with particular moral issues—our treatment of animals, our policies regarding risk to human life, our contractual obligations; others, with more general questions on the role of moral philosophers and the place of moral theory. These essays respond to the theories of Hobbes, Kant, Rawls, and MacIntyre, but Baier's most positive reaction is to David Hume; _Postures of the Mind _ affirms and cultivates his version of a moral reflection that employs feeling and tradition as well as reason. (shrink)

Chapter Promising in Law and Morals Promissory and contractual obligations raise many issues of common interest to philosophers and lawyers. ...

Reading Hobbes in light of both the history of ethics and the conceptual apparatus developed in recent work on normativity, this book challenges received interpretations of Hobbes and his historical significance. Arash Abizadeh uncovers the fundamental distinction underwriting Hobbes's ethics: between prudential reasons of the good, articulated via natural laws prescribing the means of self-preservation, and reasons of the right or justice, comprising contractual obligations for which we are accountable to others. He shows how Hobbes's distinction marks a watershed (...) in the transition from the ancient Greek to the modern conception of ethics, and demonstrates the relevance of Hobbes's thought to current debates about normativity, reasons, and responsibility. His book will interest Hobbes scholars, historians of ethics, moral philosophers, and political theorists. (shrink)

This paper examines the extent to which the voluntary adoption of codes of conduct by multinational corporations (MNCs) renders MNCs accountable for the performance of actions specified in a code of conduct. In particular, the paper examines the ways in which codes of conduct coordinate the expectations of relevant parties with regard to the provision of assistance by MNCs on grounds of rescue or justice. The paper argues that this coordinative role of codes of conduct renders MNCs more accountable for (...) the performance of actions specified in a code of conduct than they would be without a code of conduct. This interpretation of the significance of codes of conduct is contrasted with the view that codes of conduct render MNCs accountable for performing actions specified in a code of conduct by grounding contractual obligations for the performance of such actions. (shrink)

_Postures of the Mind _was first published in 1985. Minnesota Archive Editions uses digital technology to make long-unavailable books once again accessible, and are published unaltered from the original University of Minnesota Press editions. Annette Baier develops, in these essays, a posture in philosophy of mind and in ethics that grows out of her reading of Hume and the later Wittgenstein, and that challenges several Kantian or analytic articles of faith. She questions the assumption that intellect has authority over all (...) human feelings and traditions; that to recognize order we must recognize universal laws—descriptive or prescriptive; that the essential mental activity is representing; and that mental acts can be analyzed into discrete basic elements, combined according to statable rules of synthesis. In the first group of essays—"Varieties of Mental Postures"—Baier evaluates the positions taken by philosophers ranging from Descartes to Dennett and Davidson. Among her topics are remembering, intending, realizing, caring, representing, changing one's mind, justifying one's actions and feelings, and having conflicting reasons for them. The second group of essays—"Varieties of Moral Postures" - explores the sort of morality we get when all of these capacities become reflective and self-corrective. Some deal with particular moral issues—our treatment of animals, our policies regarding risk to human life, our contractual obligations; others, with more general questions on the role of moral philosophers and the place of moral theory. These essays respond to the theories of Hobbes, Kant, Rawls, and MacIntyre, but Baier's most positive reaction is to David Hume; _Postures of the Mind _ affirms and cultivates his version of a moral reflection that employs feeling and tradition as well as reason. (shrink)

This study investigated the business ethics experiences of Australian managers in China, using qualitative methodology to identify themes. Thirty-one Australian managers who had spent on average 8.7 years working in business connected to China participated in in-depth interviews regarding their business ethics experiences in China. Commonly, managers identified issues relating to a broad spectrum which could be labelled "bribery and facilitation". Other repeated themes included requests for visa assistance, employee theft, nepotism and non-adherence to contractual obligations. This study has (...) important implications for helping Australian managers improve the way they approach potential ethical situations in China. Four key coping strategies can be identified from the data: managers spoke of not compromising their own morals, of attempting to understand the motivation of Chinese colleagues, of talking to others and of adhering to company policy. These strategies suggest practical steps may be taken by organisations when training managers for business activities in China. In particular, structuring of mentoring relationships between experienced and less experienced practitioners may be of assistance. Cultural training for managers and clear company policy on contentious issues such as bribery may also be of benefit. The themes identified in the study also have implications for academics researching expatriate business peoples' experiences in China. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), (...) personal accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

The offer-and-acceptance analysis has long been questioned as not (easily) applicable to certain methods of contracting. This paper looks at this analysis through the prism of normative powers and identifies much deeper problems with the analytic explanation of how such unilateral normative powers as offer and acceptance can generate such a normative result as concluding a contract. It argues that even if the powers to offer and accept are exercised, as they are in certain methods of contracting, these are not (...) the normative powers that create contractual obligations; such obligations are always created by the jointly exercised power to contract. The paper substantiates an account of the power to contract as a sui generis normative power and explains the role the unilateral powers to offer and to accept play when they are exercised, while also explaining why there is no need to ‘invent’ offering and accepting where there are none. (shrink)

Measures of student ethical sensitivity and their increases help to answer questions such as whether accounting ethics should be taught at all. We investigate different sensitivity measures and alternatives to the well-established Defining Issues Test (DIT-2, Rest, J. R. et al. [1999, Postconventional Moral Thinking: A Neo-Kohlbergian Approach (Lawrence Erlbaum Associates, Mahwah, NJ]), frequently used to measure the effects of undergraduate accounting ethics education. Because the DIT measures cognitive development, which increases with age, the DIT scores for younger accounting students (...) are typically lower, have limited range, and are not likely to vary sufficiently with corresponding choices in ethical dilemmas. Since the DIT measures only the moral judgment component of ethical decision-making, we consider the multidimensional ethical scale (MES) to allow respondents to provide explanations for their moral and other judgments. The MES has been used to measure attitudes related to justice, utility, contractualism, egoism, and relativism. Unfortunately, the MES is not comparable in one-dimension to the DIT, and unlike the DIT, the MES has no theoretical or objective base. Therefore, we construct a comparable one-dimensional relative measure, a Composite MES Score, obtained from previous research on practicing accountants. We compare the reliability of this measure to the DIT in explaining the ethical choices of 54 specially chosen, somewhat homogeneous students, whose ages range from 18 to 19, and who are taking a second semester freshman accounting course at a private, religion-affiliated university. These particular students are relatively untrained in the formal use of questionable accounting choices. These students are less likely to recognize the dilemmas of the MES and are also less likely to demonstrate sufficient variation in their DIT scores, traditionally low for freshmen students. As freshmen, they are recent graduates of high school and more likely guided by other ethical influences including friends, family, or contractual obligations (some of the MES constructs) rather than higher cognitive development. This study confirms suspicions. We find the DIT scores do not vary sufficiently to explain the moral reasoning of freshmen. For eight dilemmas and 24 choices we find the DIT score correlates with only three choices, whereas the MES regression models have at least one significant construct for 23 out of 24 ethical choices. The Composite MES Score (a relative measure) also explains 23 out of 24 choices and is statistically related to the DIT in only one of the choices. Unlike the DIT, the Composite MES permits pretest and retesting with different dilemmas to evaluate changes in ethical sensitivity. These results argue for relative rather than absolute measures of sensitivity and guides beyond cognitive development (the DIT-score) to explain undergraduate student sensitivity. (shrink)

A dialogue arguing that morality has an objective basis in the mathematical object describing the "tit for tat" game theory. To play the game, a contractual obligation is freely made to cooperate and to fairly distribute the gains. Failure to meet these obligations results in social punishment.