scholarly journals Adam Smith and the Social Foundation of Agreement: Walford v Miles as a Relational Contract

2017 ◽  
Vol 21 (3) ◽  
pp. 376-404 ◽  
Author(s):  
David Campbell
Keyword(s):  
International Trade ◽  
Adam Smith ◽  
Case Law ◽  
Good Faith ◽  
Economic Exchange ◽  
Mutual Respect ◽  
Relational Contract ◽  
The Social ◽  
Self Interest ◽  
The Law

That the reception in subsequent case law of Leggatt J's outstanding discussion of good faith in Yam Seng Pte Ltd v International Trade Corporation Ltd has been disappointing demonstrates the continuing failure to appreciate the normative constitution of economic exchange and the law of contract. This paper re-examines the concept of economic exchange which may be derived from the work of Adam Smith in order to show that Smith did not conceive of exchange as a system of solipsistic self-interest but as self-interest which is formed on the basis of the mutual respect of the parties to the exchange. The significance of Smith's views for the law of contract will be demonstrated by a re-examination of the rejection of good faith in Walford v Miles in light of those views. Whilst it is moot whether the law of contract should recognise a general doctrine of good faith, that law must become self-conscious of the mutual respect it requires of parties to a contract which is indicated in the concept of good faith.

Manifestation Determination as a Golden Fleece

2001 ◽  
Vol 68 (1) ◽  
pp. 85-96 ◽  
Author(s):  
Antonis Katsiyannis ◽  
John W. Maag
Keyword(s):  
Social Context ◽  
Case Law ◽  
Educational Purpose ◽  
Manifestation Determination ◽  
Alternative Approach ◽  
The Social ◽  
Relevant Case ◽  
Functional Implications ◽  
The Law ◽  
Law And Legislation

Manifestation determination is a mandated provision for deciding whether a student's misbehavior is related to his disability and, consequently, whether cessation of services will be allowed. However, it is conceptually and methodologically flawed and appears to serve more of a political than educational purpose. In this article, we critique the manifestation determination provision by reviewing relevant case law and legislation, examining the social context surrounding this mandate, and questioning the validity of current approaches for making a manifestation determination. We believe this analysis will corroborate our thesis. Therefore, we conclude this article by proposing an alternative approach for conceptualizing and conducting a manifestation determination that has more functional implications than those currently in use and still addresses the spirit and letter of the law.

scholarly journals Taming Egoism: Adam Smith on Empathy, Imagination and Justice

2017 ◽  
Vol 9 (Special Issue) ◽  
pp. 29-37
Author(s):  
Agnieszka Czarnecka
Keyword(s):  
Social Order ◽  
Life Experiences ◽  
Adam Smith ◽  
Role Playing ◽  
Human Being ◽  
Impartial Spectator ◽  
Social Morality ◽  
Psychological Mechanisms ◽  
The Social ◽  
Self Interest

I argue that the construction of the social order, as shown by Adam Smith in The Theory of Moral Sentiments, depends on people’s ability to tame their inborn egoism. According to the philosopher’s anthropological assumptions a human being learns through life experiences how to control his self- interest so that it does not threaten societal existence. During socialization, a human being – still an egoist to some extent – continues role-playing by the use of the psychological mechanisms of empathy and imagination. As a result he develops sympathy, at first, as a reaction to real people’s emotions experienced in a particular context. Finally, he naturally and more and more unconsciously takes under consideration the perspective of an impartial spectator. The gradually developing process brings about consequences that improve social morality, such as control over the expression of intense emotions, which is a condition for experiencing emotional harmony, or a refrain from pursuing one’s self-interest at the expense of someone else, so as not to become a subject of social contempt. One should also bear in mind that none of these consequences was carefully planned in advance nor purposefully executed.

scholarly journals Social Norms and Economic Theory

1989 ◽  
Vol 3 (4) ◽  
pp. 99-117 ◽  
Author(s):  
Jon Elster
Keyword(s):  
Social Sciences ◽  
Economic Theory ◽  
Social Norms ◽  
Adam Smith ◽  
Emile Durkheim ◽  
Homo Economicus ◽  
The Social ◽  
Self Interest ◽  
Common Interests ◽  
Genetic Fitness

One of the most persistent cleavages in the social sciences is the opposition between two lines of thought conveniently associated with Adam Smith and Emile Durkheim, between homo economicus and homo sociologicus. Of these, the former is supposed to be guided by instrumental rationality, while the behavior of the latter is dictated by social norms. In this paper I characterize this contrast more fully, and discuss attempts by economists to reduce normoriented action to some type of optimizing behavior. Social norms, as I understand them here, are emotional and behavioral propensities of individuals. Are norms rationalizations of self-interest? Are norms followed out of self-interest? Do norms exist to promote self-interest? Do norms exist to promote common interests? Do norms exist to promote genetic fitness?

scholarly journals Monetary compensation for marital infidelity and damages resulting therefrom in comparative perspective

2019 ◽  
Vol 29 ◽  
pp. 159-170
Author(s):  
Krzysztof Bokwa ◽  
Iwo Jarosz
Keyword(s):  
Common Law ◽  
Supreme Court Decision ◽  
Case Law ◽  
Monetary Compensation ◽  
Marital Infidelity ◽  
Personal Rights ◽  
The Social ◽  
The Law ◽  
Polish Law ◽  
Historical Methods

The way the law regulates marriage and marital relations stems, at least to a certain extent, from the common beliefs of the society concerning these issues. The same can be said of the law of torts, whose norms arise from the social convictions regarding who and to what extent shall bear certain damages, including the fundamental issue of whether such damages should be subject to compensation at all or should they be incurred by the party at least allegedly injured. This paper aims to present a brief comparative analysis of the admissibility of seeking monetary compensation for marital infidelity in legal systems close to Poland German, Austrian, as well as in common law systems, and then present the possible legal grounds for such claims under Polish law, acquis of case-law and legal academics, namely — the claims related to the infringement of personal rights Article 23, 24 and 448 of the Polish Civil Code. The Polish approach is discussed in the context of a recent landmark Polish Supreme Court decision, where it has been ruled that the abovementioned provisions cannot be construed as to provide monetary relief for non-material damages suffered by betrayed spouses. The authors employ legal comparative and historical methods, supplanted by formal-dogmatic ones, to describe and show the evolution of the law concerning monetary liability for marital infidelity, in light of the statutory law and jurisprudence of Poland. Pieniężne zadośćuczynienie za krzywdę spowodowaną przez niewierność małżeńską — perspektywa komparatystycznaSposób, w jaki prawo reguluje małżeństwo i relacje między małżonkami, jest silnie zakorzeniony w powszechnych osądach moralnych dotyczących tych kwestii. Podobnie rzecz się ma z wynagrodzeniem szkody, w wypadku którego zasadniczą rolę odgrywa społeczne przekonanie co do tego, kto, czy i w jakim stopniu powinien ponosić odpowiedzialność za jej wyrządzenie. Niniejszy artykuł ma na celu ukazanie możliwości dochodzenia pieniężnej rekompensaty za niewierność małżeńską w perspektywie komparatystycznej, analizując pokrótce możliwości istniejące w tym zakresie zarówno w systemach bliskich polskiemu niemiecki, austriacki, jak i w systemach common law. W dalszej kolejności prezentowane są potencjalne prawne podstawy dla tego rodzaju roszczeń w prawie polskim, mając na uwadze tezy doktryny i orzecznictwa, w szczególności na gruncie przepisów o ochronie dóbr osobistych art. 23, 24 i 448 k.c.. Autorzy odnoszą się zwłaszcza do niedawnego wyroku Sądu Najwyższego wyłączającego zastosowanie przepisów o ochronie dóbr osobistych do konstruowania roszczenia o zadośćuczynienie za krzywdę wyrządzoną zdradą małżeńską. Autorzy używają metod komparatystycznej i historycznej, wspartych analizą dogmatyczną, by ukazać ewolucję różnorodność i ewolucję norm dotyczących majątkowej odpowiedzialności za zdradę małżeńską, w szczególności w świetle polskiego prawa i orzecznictwa.

scholarly journals Comparative Discrimination Law: Age as a Protected Ground

2018 ◽  
Vol 2 (1) ◽  
pp. 1-99
Author(s):  
Lucy Vickers
Keyword(s):  
South Africa ◽  
Social Justice ◽  
Labour Market ◽  
Case Law ◽  
Age Discrimination ◽  
Individual Identity ◽  
The Social ◽  
Comparative Review ◽  
Market Driven ◽  
The Law

AbstractThis comparative review of age as a protected ground in discrimination law explores the underpinning questions and themes related to two main dimensions of age discrimination. The first dimension is structural, economic and labour market driven, whereby age is used to allocate a range of rights, obligations and benefits within society. The second is the social justice and equality dimension, in which age is understood as an aspect of individual identity that is worthy of protection against indignity or detriment. The review then considers the law on age discrimination in a number of jurisdictions, the EU law, the UK, Sweden, USA, Canada and South Africa, and assesses the extent to which the underpinning questions explain the developing case law.

The Gift Relationship

2013 ◽  
Vol 44 (1) ◽  
pp. 1-36 ◽  
Author(s):  
Peter D. Ashworth
Keyword(s):  
Evolutionary Psychology ◽  
Adam Smith ◽  
Cost Benefit ◽  
Exchange Theory ◽  
Economic Exchange ◽  
Gift Giving ◽  
The Social ◽  
The Gift ◽  
The Cost

Abstract Derrida (1992 / 1991) made the case (following Mauss, 1990 / 1925) that the ‘pure gift’ is impossible. Because of the element of obligation and reciprocity involved, gift relationships are inevitably reduced to relationships of economic exchange. This position echoes the exchange theory of the social behaviourists, the cost-benefit analyses of evolutionary psychology, and other reductionist conjectures. In this paper, 18 written accounts of gifting are analysed using established phenomenological tools of reflection. It is shown that the dynamics of the gift relationship are complex (for example the statuses of giver and recipient are problematical, as is the expression of gratitude) and, specifically, reciprocation in gifting is not akin to ‘repaying’ the gift, but should rather be seen as a response to the gift as an expression of affective affirmation, rendering this mutual. Gift giving is in the expressive realm rather than the practical (Harré, 1979). This was, intriguingly, known explicitly by Adam Smith (2006 / 1790).

Part I Fundamentals, 1 Sources and General Features

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Good Faith ◽  
The Law

This is an introductory chapter. The case law tradition of English contract law is explained, including the distinction between Common Law and Equity. The requirements of consensus are analysed. There is an overview of modern developments in the law. Doctrinal controversies are listed, with references to parts of the book where ‘Evaluation’ sections provide comment on difficult or uncertain developments or topics. There are forty-nine such ‘Evaluation’ sections, amongst which the author’s discussion of the following topics merits special attention: negotiation agreements [4.35] and [4.42]; the rule in Pinnel’s Case [6.82]; the ‘fiction of fraud’ and the Misrepresentation Act 1967 [11.113]; duress as to person [13.27]; illegitimate (but not unlawful) pressure [13.38]; good faith [19.27]; the White & Carter case [27.66].

The law and practice of customary arbitration in Nigeria: Agu v. Ikewibe and applicable law issues revisited

1997 ◽  
Vol 41 (2) ◽  
pp. 201-214 ◽  
Author(s):  
Virtus Chitoo Igbokwe
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Applicable Law ◽  
Divergence Of Opinion ◽  
The Social ◽  
The Supreme Court ◽  
Open Debate ◽  
The Law ◽  
Enforcement Mechanisms ◽  
The Right

“Reservations about any concept do not automatically discredit it but allow for healthy and open debate to take place… the discussions that can arise from any such criticism, constructive or otherwise, can often lead to a greater awareness of the values of the system and ways in which it can be strengthened and made more effective in the interests of the general public.”This article critically examines the controversies surrounding the law and practice of customary arbitration in Nigeria against the background of the decision of the Nigerian Supreme Court in Agu v. Ikewibe. The case law on customary arbitration is briefly reviewed with a view to demonstrating that prior to the Agu case, there existed a divergence of opinion among judges on some fundamental principles of the law and practice of customary arbitration in Nigeria, particularly with respect to the right of the parties to withdraw at any stage of the arbitration proceedings or even after the award is rendered. The article disagrees with the views of some judges and learned scholars that theres no distinction between customary arbitration and other consensus-oriented dispute resolution methods such as negotiation and conciliation. In disagreeing with these views, it is argued that in distinguishing customary arbitration from negotiation or conciliaion, the nature of the decision-making process should be of paramount consideration. It will further be argued that the binding nature or enforcement of the decisions of a judicial or quasi-judicial body differs from society to society. These enforcement mechanisms should not be divorced from the social relationships existing in a particular society. In conclusion, the article endorces the decision of the Supreme Court in Agu v. Ikewibe as the correct restatement of the law and practice of customary arbitration in Nigeria.

Law and Social Norms

2017 ◽  
Author(s):  
Emanuela Carbonara
Keyword(s):  
Social Norms ◽  
Legal Regulation ◽  
Legal Norms ◽  
The Social ◽  
Self Interest ◽  
Intrinsic Efficiency ◽  
The Law ◽  
The One ◽  
Historical Moment ◽  
The Impact

Legal norms are often seen as a means to regulate behaviour when neither self-interest nor social norms produce the desired behaviour in individuals. This suggests, on the one hand, that the law should regulate those areas in which social norms do not exist and provide support and extra enforcement in those areas where social norms exist. It also suggests on the other hand that there seems to be no questioning of the intrinsic efficiency and fairness of existing social norms. This article first looks at the genesis of social norms and the mechanism of their enforcement. This allows a closer inspection of the efficiency and fairness concepts. It then considers the impact that introducing legal norms has in contexts in which social norms already exist and in those that social interaction left unregulated. The main issue here is that the social norms prevailing at some historical moment may be just an equilibrium among multiple equilibriums. Given many possible equilibriums, we need to explain why and how one equilibrium is selected and others are rejected. The scholarship on social norms emphasizes that expressive acts in law can select the equilibrium. Legal norms seemingly reinforce existing social norms, bending them towards the law when discrepancy exists and favouring their creation where social norms do not exist. However, legal regulation can also destroy existing social norms (crowding out) or it can be defeated by them (legal backlash and countervailing effects).

Caste, Class, Community, and the Everyday Tales of Law

2018 ◽  
pp. 225-309
Author(s):  
Anushka Singh
Keyword(s):  
Social Order ◽  
Case Law ◽  
Face To Face ◽  
State Institutions ◽  
The Social ◽  
The Everyday ◽  
The Law ◽  
Class Community

This chapter juxtaposes the understanding of sedition emerging from the higher judiciary with the practice of the law on the ground. The chapter is primarily field based which looks at sedition in its everydayness intertwined with the social order based on caste, class, and community in India. It proceeds through a study undertaken of three specific regions of Haryana, Maharashtra, and Punjab. The regions, are not chosen as field sites; in fact, they emerged as field areas following the case law method in which the intertwined dynamics of sedition with sociopolitical variables, lend it a different character. This included personal visits, face to face interviews, and the attempts to partially experience the lived realities of the actors involved both at the level of state institutions and otherwise.

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