Equality and Distributions of Inheritance in Families

Inheritance distributions in families involve people in deciding about the meaning and application of equality. Using a distributive justice perspective, this study used hypothetical vignettes to examine 89 older adults' judgements about inheritance distributions to children under systematically varied conditions related to a child's relative deservedness or need. Participants endorsed the cultural norm of equal distribution where there was little information about circumstances. When they knew an adult child's circumstances, 80 percent of participants qualified their adherence to equality in situations that evoke other distributive principles which are important in families, for example, reciprocity and responsiveness to need. Decisions about inheritance distributions involve adapting social norms to different family circumstances, taking account of specific roles and relationships, and giving personal meanings to the concept of equality.     

Virtuous Circularity: Positive Law and Particular Justice

This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the distinction is worthwhile and that this can only be accomplished by the introduction of positive allocation schemes.     

社会分配法的价值范畴分析

分配正义作为社会分配法的基本价值范畴,是一个由平等、自由、公平、效率等要素性价值目标构成价值体系。但是,在不同国家的特定社会经济条件下,分配法律制度的主导价值追求和目标排序是有明显差异的。在分配法律制度中,分配正义将通过基本原则这一价值载体来确认和指导法律调整分配关系的目标定位和路径选择。     

The “Economic Battle” Now and Then: (E)valuation Patterns of Distributive Justice in Cuban State-Socialism

This article disentangles and explores some commonly made assumptions about egalitarian state-socialist ideologies. Based on the conceptual framework of the multiprinciple approach of justice, it presents the results of an in-depth analysis of (e)valuation patterns of distributive justice in Cuban state-socialism. The analysis mainly focuses on ideational conceptions of distributive justice (just rewards), but it also accounts for distribution outcomes and resulting (in)equalities (actual rewards). The results of the comparative case study of the Cuban framework of institutions and political leaders’ views in two periods of time, the early 1960s and the 2010s, point to (e)valuation patterns that are generally labelled as egalitarian, such as the allocation rules of outcome equality and (non-functional) needs. However, contrary to common assumptions about egalitarian state-socialist ideologies, the results also point to several other patterns, including equity rules as well as functional and productivist allocation rules. I argue that many of these (e)valuation patterns, in their connection to the discursive storyline of the Cuban economic battle, are indeed compatible with egalitarian state-socialist ideology.

     

The Politics of Jurisprudence Revisited: A Swedish Realist in Historical Context

This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.     

Due North? Do American Theories of Legislative Committees Apply to Canada?

Several theories of legislative organisation have been proposed to explain committee selection in American legislatures, but do these theories travel outside the United States? This paper tests whether these theories apply to data from the Canadian House of Commons. It was found that the distributive and partisan models of legislative organisation explain committee composition in Canada. In many cases, committees in the House of Commons are made up of preference outliers. As predicted by partisan models, it was also found that the governing party stacks committees with its members, but this is conditional upon the strength of the governing party.     

Equality

“Equality” is a notion about which disagreement arises not simply due to lack of clarity and precision (or intellectual dishonesty and bad faith). Rather, equality is an idea that implies and implicates some form of disagreement as a constitutive possibility of its horizon of discussion. This, in my view, is both a problem and an opportunity. I submit that equality is a plural notion: There are only equalities, practices aimed at removing situated circumstances of inequality and discrimination.     

作为“中介”的“复合平等”——沃尔泽对罗尔斯分配正义理论的批判及其限度

沃尔泽认为,罗尔斯通过＂原初状态设置＂所演绎出的＂正义二原则＂只是一种实现通常之＂简单平等＂的分配正义原则,无法解决由诸多领域所构成之社会的分配正义问题。因而基于对西方世界分配现状的观察及其人性观,沃尔泽提出了＂复合平等＂的分配正义理论。事实上,只有罗尔斯的＂正义二原则＂才能有效实现社会的分配正义。因此,沃尔泽的分配正义理论实际上只是深刻理解罗尔斯＂正义二原则＂的＂过渡理论＂或＂中介＂,而不是对后者的根本性超越。     

Toward a moral theory of negligence law

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism with distributive rather than corrective justice. Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former.     

Prospects for Distributive Justice Theory

Theoretical progress is essential to the viability of any scientific subdiscipline. Ever since a growth spurt in the 1980s, however, and despite a very active research enterprise, distributive justice theory has developed very little. Our approach is first to discuss the role that theory plays in disciplinary growth. After noting the indicators of stagnation in distributive justice areas, we identify key problems with the way distributive justice theories are constructed and evaluated. Specifically, little attention is paid to the clear definition and consistent use of theoretical terms, or to the construction of explicit logical arguments from which empirical hypotheses may be derived. Weaknesses in these areas all but prohibit the evolution of improved theories over time. We conclude with a set of evaluative criteria that, if applied collectively by members of the field, would optimize the chances for theoretical progress. Ultimately this also would lead to more efficient empirical tests and better-informed practical applications of distributive justice theories.     

Distributive and Procedural Justice in Seven Nations

The paper examines the impact of distributive justice and procedural justice variables on judgments in seven countries (Bulgaria, France, Hungary, Poland, Russia, Spain, and the United States). Subjects were presented with each of two experimental vignettes: one in which the actor unsuccessfully appeals being fired from his job and one in which the actor unsuccessfully goes to an employment agency to seek a job; they were asked to rate the justness of the outcome and how fairly the actor had been treated. The vignettes manipulated deservingness and need of the actor (distributive justice factors) and impartiality and voice in the hearing (procedural justice factors). Four hypotheses were tested: first, a distributive justice hypothesis that deservingness would be more important than need in these settings; second, a procedural justice hypothesis that the importance of voice and impartiality vary depending on the nature of the encounter and the forum in which it is resolved; third, because of their recent socialist experience, Central and Eastern European respondents make greater use of need information and less use of deservingness information than Western respondents; and fourth, that distributive justice and procedural justice factors interact. The distributive justice hypothesis is supported in both vignettes. The procedural justice hypothesis receives some support. Impartiality is more important in the first vignette and voice is more important in the second vignette. The interaction hypothesis was not supported in the first vignette, but does receive some support in the second vignette. The cultural hypothesis is not supported in either vignette. The implications for distributive and procedural justice research are discussed.     

People We Hire as Executioners: Who Are They? Who Are We?

Christopher Bennett has introduced a new inquiry into the capital punishment debate by looking at whether the role of executioner is one in which it is possible and proper to take pride. He argues that this will depend on the kind of justifications that an executioner can offer in defense of his role and takes as an example the English executioner Albert Pierrepoint as portrayed in the film Pierrepoint: The Last Hangman. Bennett claims that none of the justifications available to Pierrepoint are adequate, that his pride in his role was unjustified, and that this gives us reason to doubt those justifications for capital punishment. I am unpersuaded by Bennett’s arguments and give reasons for thinking that the role of executioner can under certain circumstances be an honorable vocation in which one may legitimately take pride.     

Reflecting Upon Etic and Emic Perspectives on Distributive Justice

The study of distributive justice may be examined using two research perspectives. The first, etic perspective seeks to unveil the common characteristics that characterize the spectrum of distributive justice phenomena across different cultures and circumstances. This perspective focuses on the universal aspects of justice behavior, namely, general laws and causal explanations. The second, emic perspective focuses on the ways in which justice behavior is expressed in specific socio-cultural contexts. This paper proposes a three-part reflection on these two perspectives on distributive justice. First, we review the ways in which the emic, culturally specific perspective has hitherto been incorporated into research on distributive justice; second, we examine the ways which the etic and emic perspectives are employed in two empirical studies on justice perception in Israel; and, finally, we suggest possible ways in which an extended emic perspective can be further incorporated in the study of distributive justice. An earlier version of this paper was presented at the Social Justice Conference, University of Bremen, Bremen, Germany, March 2005.     

WHEN DOES A REGULATION BECOME A TAKING? THE UNITED STATES SUPREME COURT'S MOST RECENT PRONOUNCEMENTS

Keystone Bituminous Coal, Irving, and Nollan are thus each consistent with paths taken in relevant precedents–the former two with “multifactor balancing” cases such as Penn Central and the latter with “enduring invasion equals taking” decisions such as Loretto v. TeleprompterM. However, can these twosets of precedents themselves be reconciled? I believe that the correct answer is “yes,” and that we therefore have another reason for asserting that Keystone Bituminous Coal and Nollan are consistent with each other. The tests are compatible in that the Court will first ask itself whether the regulation results in a longstanding occupation of property. If the answer is “yes,” it will declare a seizure then and there. Only if the answer if “no” will it proceed to balance.     

Popping the cultural bubble of violence risk assessment tools

Violence risk instruments are administered in medico-legal contexts to estimate an individual’s likelihood of future violence. However, their ostensible limitations; in particular their mono-cultural and risk-centric composition, has drawn academic attention. These concerns may facilitate erroneous risk evaluations for certain non-white populations. Yet it remains unaddressed how cultural differences will be appraised in a risk assessment framework and which specific cultural factors should be considered. Provisions under the Canadian Criminal Code allow for Gladue Reports, to be sought by judicial officers prior to sentencing Indigenous people. Gladue Reports provide insights into an Indigenous person’s unique circumstances that may have led to their offending as well as community-based options for rehabilitation. We proffer that there may be value in augmenting the risk evaluation with culturally relevant Gladue style considerations identified by relevant Indigenous people to provide a more holistic account of an Indigenous individual’s circumstances.     

Authority and Authorisation

The core of Kelsen's strong views onauthority emerging from his concept of law is this:Authority of law, authority in law andauthority about law are one and the same thing.The conceptual problems suggested by these threedifferent prepositions must and can be solved in onefell swoop. Kelsen's core view will first be probed bygiving an account of what is a promising approachoffered in a fairly early text, Das Problem derSouveränität, namely, what it means to`set' or `posit' the law. Inevitably, this leadsto an interpretation of the Grundnorm, one thatintends to accommodate as many Kelsenian emphases aspossible. The Grundnorm will be presented as ashield against hypostatising authority. From there,some characteristics will be inferred of the type ofauthority that arises from Kelsen's account of legalknowledge, which will be called, somewhat polemically,authority without an author.     

Let's Make a Brand New Start of it in Old New York: Using Mediation to Resolve Open Adoption Disputes

There is no general consensus of how to handle disputes arising from open adoption agreements. Some states have statutes mandating mediation, but New York does not. This Note proposes that New York enact a statute that mandates adoptive and birth parents use mediation for disputes arising from open adoption agreements. The proposed statute provides a comprehensive approach to mediation by setting forth when mediation is appropriate and when it is not. The statute will also provide when the child's preference can be taken into consideration, and who will pay for mediation.     

Cross-Disciplinary Conversations: A Psychological Perspective on Justice Research with Non-human Animals

Social Justice Research has devoted two recent issues to the topic of inequity responses in non-human animals. The goal of this paper is to provide some commentary from the perspective of psychological theory and research on justice and fairness in humans. In an attempt to build greater cross-disciplinary sharing of ideas and insights, I briefly review the major insights from (a) contemporary research on questions of fairness and justice with non-human primates and how this corpus of knowledge can inform the on-going study of these issues in psychology and related disciplines, and (b) 50-plus years of research on justice and fairness in psychology and related disciplines, and how it can inform contemporary research efforts with non-human animals going forward. The spotlight behavioral economists and justice research with non-human animals places on the primary role of distributive justice is suggestive that it may be time for a renaissance of interest in this topic in psychology and related disciplines. The focus of psychological research on topics such as boundary conditions on equity as key justice concern (e.g., alternative distributive norms such as equality and need), as a well as attention given to procedural, interactional, retributive, and restorative justice, is suggestive that research with non-human animals should broaden its horizons to study alternative conceptions of justice and fairness.     

The Embedded Epistemologist: Dispatches from the Legal Front*

In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing—as it often is in legal contexts—epistemological theory may be helpful. A legal fact‐finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical probabilities: a point illustrated by comparing the advantages of a foundherentist analysis with the disadvantages of probabilistic analyses of the evidence in the Sacco and Vanzetti case (1921), and of the role of the statistical evidence in Collins (1968).     

Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law

The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute private law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of private law, which is like Kant’s in that it understands private law as a means of instituting and protecting private freedom. Yet, semi-Kantians insist that the choice between different private law programs, which respect private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole.