Fair Social Ordering, Egalitarianism, and Animal Welfare

We study fairness in economies where humans consume one private good and one public good representing the welfare of other species. We show that a social evaluator cannot be egalitarian with respect to humans while always respecting humans’ unanimous preferences. One solution is to respect unanimous preferences only when doing so does not lead to a decrease in the welfare of other species. Social preferences satisfying these properties reveal surprising connections between concerns for other species, egalitarianism among humans, and unanimity: the latter two imply a form of dictatorship from humans with the strongest preference for the welfare of other species. (JEL D11, D63, H41)

The Case for Religious Constitutions: Comparative Constitutional Law among Buddhists and Other Religious Groups

This article argues that there is body of governing laws appearing widely throughout the global history of religions that warrants classification as constitutions. Like national constitutions, these religious constitutions present themselves as a form of “higher law” that declare the identity of a given a community, organize its structures of governing power, define its foundational norms, and authorize further acts of rulemaking. In this article, I offer an overview of these texts across several traditions and a defense of their importance in the study of comparative constitutional law. I then draw on fieldwork from Sri Lanka to provide a firsthand account of what a modern religious constitution looks like and how it works to govern one of the country’s largest communities of Buddhist monks. I conclude by urging scholars to view religion and constitutional law not as opposing legal domains but, rather, as homologous forms of social ordering that draw upon similar concepts and logics to address common human dilemmas.

Fair income tax with endogenous productivities and a fresh start

This paper considers a model in which agents have heterogeneous preferences over labour and consumption. Additionally, they also differ in their earning skills, which are a function of both an innate ability and an early investment decision. In this framework we axiomatically derive a social ordering function that, besides compensating agents for their unequal productivities, grants a fresh start to those who regret their initial choices. Next, by assuming a second-best context we characterise the income tax scheme that satisfies this social ordering. This analysis permits us to present an explicit criterion for the assessment of social welfare under different tax policies. We obtain that the optimal scheme aims to compensate those endowed with the lowest marginal productivity. More importantly, on account of the forgiveness ideal positive social marginal weights are assigned to those who earn the lowest income levels, something that induces a progressivity tendency at the bottom of the earnings distribution.

Law, Code and Exploitation: How Corporations Regulate the Working Conditions of the Digital Proletariat

Contrary to what orthodox Marxism claims, the article defends that the legal field has been a fundamental aspect of the capitalist social ordering, and an unavoidable feature to understand how dominated subjectivities are produced and exploited. Expanding Lessig’s concept of ‘code as law’ with Marxist scholarly, the article argues that digital capitalists are reorganising work and the labour force through a form of algorithmic regulation. The article states that algorithms – that is, digital machines – have become not only part of the means of production of the era of automation, but also the code by which capitalists are writing the conditions of existence and exploitation of the digital proletariat. The article bridges recent contributions on labour law, AI and algorithmic regulation with the latest Marxist sociological contributions analysing the relation of work and digital exploitation, opening with it new ways to understand how sociotechnical systems owned by corporations regulate the behaviour not only of the working class but of the wider citizenry.

The Untethering of Mediation from Relationships

There is no doubt that Lon Fuller contributed mightily to the legitimization of mediation when he chose to identify it as one of six key processes for social ordering, or processes that “bring[] human relations into a workable and productive order” (p. 307). The other processes—legislation, adjudication, administrative direction, contractual agreement, and customary law—were (and are) much more likely to be identified as sources for rules of law....

CommentsADR and Public Values Again

This comment revisits a long-standing debate about alternative dispute resolution (ADR) and public values. In Against Settlement, Fiss argued that ADR would undermine popular commitments to “public values” (1984). For Fiss, public values are moral truths about rights, justice, and social cohesion that all who comprise “the public” should want to uphold, and which the state is obligated to enforce. Fiss distinguished public values from subjective preference, or what any one individual actually desires. He submitted that by resolving disputes according to individual preference, ADR would replace public values with individual interests and replace state power with private social ordering. Hence, Fiss declared himself against settlement....

CommentsLon L. Fuller: Private Ordering and Mediation

One of the first major law review articles on mediation, published in 1971, Lon L. Fuller’s Mediation—Its Forms and Functions, is an important piece of dispute resolution scholarship for several reasons. While this commentary focuses upon the article’s discussion of private social ordering, Fuller’s discussion foreshadows three major dispute resolution developments. In his discussion of the negotiation process, Fuller reveals a remarkable understanding of negotiation as he explains the difficulty of timing the disclosure of information and the gains of reciprocity. Today we view this in terms of the Negotiator’s Dilemma—which Lax and Sebenius famously wrote about fifteen years later. Similarly, his discussion of mediation as a means of assisting with the dissolution of marriage presages the first use of mediation in child-custody disputes by approximately ten years. Finally, he even hints at the demise of the joint opening session in mediation when he describes the opening sessions of collective bargaining, with or without a mediator’s assistance, as serving “only a ceremonial and ritualistic purpose” (p. 322). If that’s all it’s for, why not get rid of it? As interesting as it is to find the hints of these developments, a much more integral factor in the article’s importance is Fuller’s stature as one of the preeminent legal theorists of the twentieth century. According to his biographer, Fuller was “one of the four most important American legal theorists of the last hundred years” (Summers, p. 1) and “the greatest proceduralist in the in the history of legal history” (Summers, p. 151). His jurisprudence, which formed the basis of mid-twentieth-century secular natural law, argued that the purposes of law, the internal reasoning within law, and law’s internal morality must be considered when one is engaged in legal analysis. Not only did these notions become central to “thinking like a lawyer” (Powers, p. 221), they also were to be applied to legal processes, including mediation, not solely to abstract notions of law....

A Discourse on the Contemporary Relevance of the Educational Underpinning of Plato’s Political Philosophy

The journey towards social ordering and the need to make life much better than it used to be is one of the principal motivations for political philosophy. Hence, there are as much political theories to this effect as there are political philosophers and scientists. Whereas the aim of the present research is to consider what kind of political theory can assist in social ordering, it does this, taking cognizance of the pedagogical postulates of the political scholar, Plato. In other words, this research reconsiders the educational underpinning of Plato’s political philosophy for use in the quest toward the agenda of attaining nationhood in Nigeria. This comes as a consequence of the urgency to correct the ugly trend(s) that have greeted the educational system of the country as well as the failure of the social sciences to provide the much sought succor. This approach is sacrosanct because of the undue but accentuated emphases that have been given to the social sciences as the domain from which development and nationhood can spring. Incidentally, the journey toward nationhood for Nigeria, continues to be one of the most disturbing dilemmas that continues to haunt the country. Via the method of critical analysis, this essay argues that Plato’s political philosophy has some educational ideals that present implications for contemporaneous nature or character of contemporary Nigeria. By giving emphasis on his reflections on the principle of specialization, this study is able to argue that the spirited application of this ideal for contemporary Nigeria via pedagogy will go a long way to birth the much sought nationhood. Political philosophy needs pedagogy to be able to realize its ideals. Unless this initiative is underscored, this essay submits, the quest for nationhood will continue to lament in the labyrinth of folly and backwardness.

Human rights for profit: The system-preserving tendencies of the regional human rights courts

This article presents an analysis of the way that profit-making corporations have sought human rights protections in the following two regional human rights courts: the European Court of Human Rights and the Inter-American Court of Human Rights. It seeks to deepen our understanding of a controversial principle in that corporations can claim protections as ‘legal persons’. After exploring precisely how and why each of those regional systems have accepted claims for human rights protections by corporations and their shareholders, the article then develops an analysis of what the way that the regional human rights courts have carefully weighed their decisions implies more broadly about the prospects for human rights law to exhibit either system-threatening or system-preserving tendencies. The article then concludes by setting out a general principle of social ordering that underpins the decisions made in human rights courts.