Property Rights, Theft, Amnesty, and Efficiency

In this paper we show that costs associated with infractions of property rights, such as theft, can be reduced by imposing lower penalties on individuals who admit to such infractions and make restitution. We find that the socially optimal penalty on a confessed thief may be zero (complete amnesty) or even negative—a person may be given a reward for confessing a theft. This is because a thief's valuation of a good is generally lower that its valuation by its legal owner, and an amnesty permits the trade that such a difference in valuation makes calls for. It is interesting to note that the benefits of amnesties were apparently recognized in ancient times and they constitute part of Biblical Law. Moreover, such amnesties have also been informally incorporated into modern legal systems, wherein leniency (a form of partial amnesty) is generally shown to individuals who confess their infractions.     

WORK, FAMILY, AND INCOME

The relation between work and families is undergoing extraordinary levels of change at the current time. Most of the policy discussions assume that it is possible to continue moving in the directions which dominate at the end of the century: commitment to long hours of work which then permits obtaining a high standard of living. The basic problem is that there is now overwhelming evidence that continuation of current trends is tearing cultures apart. Some are capable of earning larger and larger incomes. Those at the bottom are both money and knowledge poor. And the middle class is shrinking. If we are to benefit from the potential of today's world, we can only do so by moving outside our current thinking and asking how we want to define the quality of life in the twenty-first century.     

Sovereignty, Exception, and Norm

Carl Schmitt's Political Theology is the locus classicus of contemporary discussions of sovereignty. I argue that Schmitt's conception of sovereignty is excessively metaphysical and that it posits an incoherent 'sovereign' ability to decide what shall count as normal. Schmitt follows and radicalizes the late Bodin's claims – themselves the product of a political theology, namely, Bodin 's conversion to Judaism – regarding the necessity of an indivisible and absolute sovereignty. In each, the relation between the executive and the other parts of government is reduced to what Schmitt describes as an 'either/or.' This move is a disastrous mistake. The question is not whether exceptions and emergencies such as terrorist attacks are real, but to what extent the executive branch can rightly claim a monopoly on the ability to determine whether an exception exists, and whether its resulting actions will be permanently unchecked and unregulated. Recent work by Bruce Ackerman is a better guide in these matters than the metaphysics of either Schmitt or Bodin.     

Zoning Digest,Volume 16, Issue 11, December 1964, Part 2

This is the complete issue of Volume 16, Issue 11, December 1964, Part 2 Pages 353–400     

Nation-states,Market-states,and Virtual-states

The advent of a global economic and physical superinfrastructure is in the process of transforming terrorism, guerrilla warfare, and the nation-state. A useful model for understanding this process of transformation is Philip Bobbitt's work, “The Shield of Achilles.” Bobbitt's work demonstrates that the nation-state is in a difficult and dangerous process of transition to a new form of governance, called the market-state, that is built to withstand and prosper despite the pressures of globalization. This process is complicated by the emergence of a vicious asymmetric competitor, in the form of a virtual state that leverages the huge flows of the global criminal economy, combined with the weakness of the nation-state during its phase transition to the market-state. This essay details the structure of this conflict and provides a scenario for its potential outcome.     

Church,State, Resistance1

This article problematizes a separation of Church and State that is nevertheless identified as constitutive of politics. Democracy has come to manifest a tension between the ‘autonomy’ of the political and a ‘heteronomy’ that, exceeding rationalist or social contractarian accounts of our co‐existence, is here presented as an irreducible affect of our being together. Autonomy, it is argued, resists heteronomy through all representations of democracy; yet, by contrast, heteronomy resists autonomy, and does so with the force of this affect. So if civil religion is impossible – and if we know only too well where its realizations lead: by default, to republican celebration, or by excess, to fascism – then we must take up again, and from scratch, the question of the affect according to which we co‐exist.     

Zoning Digest,Volume 16, Issue 11, December 1964, Part 1

This is the complete issue of Volume 16, Issue 11, December 1964, Part 1, Pages 305–352     

Erotomania, triangulation, and homicide

A case of homicide by a 29-year-old male with erotomanic delusional disorder and various personality disorders is reported. Following a month of pursuit of a female stranger with whom he had briefly conversed in a local bar, he assaulted an automotive plant where she worked, delusionally believing that she was at imminent risk and needed to be rescued. One plant manager was killed and two police officers were wounded. The case illustrates the phenomenon of triangulation, where rage toward the rejecting object is displaced onto a third party, which is then perceived as impeding access to the victim and may be at risk for violent assault.     

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.     

社会转型、法制化与法院调解

我国正处于社会转型时期,社会的法化程度不足,依法审判并不尽如人意。由于社会革命和政权建设破坏了传统的地方自治共同体,经济体制改革又瓦解了单位制,使得依赖于共同体和社会性制裁的民间调解难以恢复历史辉煌。经过几十年法制化的浸染,司法权威获得了社会的基本确认。调解与司法两个元素发生耦合,是法院调解在持续萎靡之后又在新世纪复兴的根本原因。但由于司法政策与程序制度之间出现断裂,法院强调调解出现了自我消解的危险趋势。只有继续加强审判制度建设,理清审判与调解的相互关系,并确定二者各自应有的相位,方是利用调解化解纠纷、满足转型时期维护社会稳定的需要,向法治迈进的基本路径。     

Criminal Labelling,Publicity, and Punishment

This paper considers whether publicizing criminal labels is justified as a form of punishment. It begins by arguing that making criminal labels public is inevitably stigmatizing and that stigmatization is not, as is often implied, a defining aspect of censure, but needs independent justification. It argues that justifying grounds for public criminal labelling cannot be found in either the communicative account of punishment or deterrence theory. Rather, public criminal labelling should be understood as undermining of both the communicative and the deterrent functions of punishment. Recent empirical work is drawn upon to support the claims about public criminal labelling and deterrence.     

Consent,Legitimation, and Dysphoria

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad.  This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics.  Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex.  Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province.  This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs.  This essay develops some of the limits and perils of an over-reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction.  Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.     

Character,purpose, and criminal responsibility

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment.     

Zoning Digest,Volume 19, Issue 10, 1967

This is the complete issue of Zoning Digest, Volume 19, Issue 10, 1967. Case abstracts are numbered serially. The jurisdiction and proper Zoning Digest citation appear with each case.     

Zoning Digest,Volume 19, Issue 3, 1967

This is the complete issue of Zoning Digest, Volume 19, Issue 3, 1967. Case abstracts are numbered serially. The jurisdiction and proper Zoning Digest citation appear with each case.     

Law,psychology, and children

Society's treatment of children and families is guided by the premises that children lack the ability and/or the capacity to be autonomous directors of their own lives and that the private autonomous family is best suited to provide for the best interests of children. These premises are based on two assumptions: (a) that parents will act in their children's best interests, and (b) that parents possess the maturity, experience, and judgment required to make life's difficult decisions, which children lack. We explore these premises and assumptions along with the concept of the best interests of children and the relationship between children's capacities and children's rights. We conclude that collaboration between legal scholars and social scientists will enhance the likelihood of more informed decision making about these issues.Appreciation is expressed to Sarah L. Cook, without whose assistance this special issue would never have been completed.     

Autonomy, justice, and disability

In this Article, Professor Carlos A. Ball explores the philosophical foundations for the types of rights and benefits that our society currently provides to individuals with disabilities. The concept of autonomy places on society a moral obligation to assist individuals with disabilities when their basic human functional capabilities are impaired. The exercise of this obligation entails assisting individuals with crossing a minimum threshold of functional capabilities below which it is not possible to lead autonomous lives. In making this argument, Professor Ball responds to libertarian critics who contend that notions of freedom or liberty proscribe an activist role for government in this arena. He explains how even a libertarian state redistributes wealth in order to provide for some incapacities. Professor Ball also disputes the idea that the meeting of the needs of the disabled is enough to provide moral justification for the rights and benefits provided to individuals with disabilities. The problem with the concept of needs, Professor Ball argues, is that it fails to account sufficiently for the human good of personal autonomy.