Tales of law and morality

B.A. (hons.), Acadia University 1982; B.A. (juris.), Oxford University 1984; LL.B., Dalhousie University 1985; B.C.L., Oxford University 1986; M.A., Oxford University 1991.     

Individualism,contractarianism, and morality

This study develops the ethical implications to ascribing to both individualism and contractarianism as ethical postulates. We define moral individualism as defining the morality of all normative judgments concerning human action in reference to the extent that these actions allow individuals to achieve their interests. Contractarianism defines right and wrong in terms of the conduct proscribed in voluntarily joined contracts. This individualistic-contractarian ethics is inherently relativistic. Right and wrong are defined only with respect to the actions of the set of individuals joined in contract. Yet, it is argued that the individualist-contractarian morality can be defended because it provides both clear definitions of right and wrong and provides individuals with arguments and incentives to do that which is right.     

The morality of law and economics

The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory.     

The relationship between law and morality

Law and morality can be considered as two competing groups among varied and sophisticated social phenomena. Both law and morality serve as norms of human behavior and fall in the category of values for maintaining social welfare. The study was based mainly on a review of the relevant literature and the compiling of available information on law and morality. This paper argues that law and morality are closely related yet distinct.     

Prostitution,criminal law and morality in the Netherlands

In 1911 a new public morality act was enacted in the Netherlands. Article 250bis of the penal code states that it is forbidden to give opportunity for prostitution. This so called article on brothelkeeping was the result of growing pressure of a coalition between christian puritans, socialists and feminists at the end of the nineteenth century. In the nineteeneighties the government has proposed to scratch this general prohibition of brothelkeeping. This proposal results from another coalition, this time between feminists and bureaucratic powers. This change in the public debate on prostitution, and especially the influence of feminism, is analysed from a moral point of view. The Dutch prostitution issue is seen as a case of postmodern morality, that is to say as a result of bureaucratic needs for regulation and subjective experiences of the persons involved.     

The political morality of convergence in contract

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.     

行政法上的客观法与主观法

针对如何理解行政法上客观法与主观法的关系,存在三种基本立场。主客观法分离立场认为维护公益的行政法与公民个人权利形成对峙。该立场存在无法关联违法性与侵权性、抱持无视宪法的行政法观等疑问。主客观法结合立场主张从客观法中分出一部分请求权对应行政主体法定义务。该立场存在宪法与行政法平台错位、公益与私益纵向割裂等局限。主客观法统一立场将客观法当作主观法的全部集合,权利由客观法分解得来。该立场是理解行政法主客观法关系的妥当见解。在分配行政与利害调整观念下,特定或不特定复数私人主体间基于行政法律规范的各种利益与不利益冲突、对立并交织而成的利害关系网才是行政实体法律关系的本质,行政法上的实体权利应当由此导出。遵循“利害关系→合法权益”而非“合法权益→利害关系”的逻辑顺序才是判断行政诉讼原告资格的正确方法。