For virtually all the major schools of Western opinion, the collapse of the Communist regimes in Eastern Europe and in the Soviet Union, between 1989 and 1991, represents a triumph of Western values, ideas, and institutions. If, for triumphal conservatives, the events of late 1989 encompassed an endorsement of “democratic capitalism” that augured “the end of history,” for liberal and social democrats they could be understood as the repudiation by the peoples of the former Soviet bloc of Marxism-Leninism in all its varieties, and the reemergence of a humanist socialism that was free of Bolshevik deformation. The structure of political and economic institutions appropriate to the transition from post-Communism in the Soviet bloc to genuine civil society was, accordingly, modeled on Western exemplars—the example of Anglo-American democratic capitalism, of Swedish social democracy, or of the German social market economy— or on various modish Western academic conceptions, long abandoned in the Soviet and post-Soviet worlds, such as market socialism. No prominent school of thought in the West doubted that the dissolution of Communist power was part of a process of Westernization in which contemporary Western ideas and institutions could and would successfully be exported to the former Communist societies. None questioned the idea that, somewhere in the repertoire of Western theory and practice, there was a model for conducting the transition from the bankrupt institutions of socialist central planning, incorporated into the structure of a totalitarian state, to market institutions and a liberal democratic state. Least of all did anyone question the desirability, or the possibility, of reconstituting economic and political institutions on Western models, in most parts of the former Soviet bloc.

Law is the expression of public reason. I want to explicate and justify this assertion, which lies at the core of a normative theory of law. Primarily, I want to focus on the concept of public reason, showing what it is, relating it to private or individual reason, and finding its rationale in that relation. I shall then argue that public reason exhausts the normative space where law may be found. Appealing to public reason, I shall show that the authority that law claims over the judgments and actions of citizens must ultimately be grounded in their own rationality.

Why do we need government? A common view is that government is necessary to constrain people's conduct toward one another, because people are not sufficiently virtuous to exercise the requisite degree of control on their own. This view was expressed perspicuously, and artfully, by liberal thinker James Madison, in The Federalist, number 51, where he wrote: “If men were angels, no government would be necessary.” Madison's idea is shared by writers ranging across the political spectrum. It finds clear expression in the Marxist view that the state will gradually wither away after a communist revolution, as unalienated “communist man” emerges. And it is implied by the libertarian view that government's only legitimate function is to control the unfortunate and immoral tendency of some individuals to violate the moral rights of others.

Contemporary fiscal theorizing largely assimilates the activities of government to that of some choosing agent. This paper explores an alternative approach where government is assimilated to an emergent process of complex interaction, as a form of complex adaptive system. Within this alternative vision, governments are treated not as objects of intervention into a market economy but as arenas of organized participation within it. While recent developments in computational modeling are starting to provide tools for probing such a vision, the roots of that vision can be traced back to the spontaneous order theorists of the 18th century. After sketching some contours of this alternative vision, the remainder of the paper explores some possible implications of this change in vision for mapping the relationship among taxation, prosperity, and justice.

The political pursuit of global justice is not a worthy goal, and our aims in establishing international legal and political institutions should be more modest. The pursuit of justice in the international order is dangerous to the extent that it requires the establishment of powerful supranational agencies, or legitimizes greater and more frequent exercise of political, economic, and military power by strong states or coalitions. The primary concern in the establishment and design of all legal and political institutions should be not to secure justice but to limit power. It is a mistake to think that a distinction can be drawn between power created to do good and power created to do evil, or that we are capable of devising institutions that can honor the distinction.For helpful comments on earlier drafts of this essay, I would like to thank Jerry Gaus, David Miller, Dan Greenwood, Peggy Battin, Leslie Francis, Erika George, Cindy Stark, and Deen Chatterjee, as well as my fellow contributors to this volume. For especially detailed and helpful editorial comments and advice, I would like to thank Ellen Paul.

Around the world, multiethnic states are in trouble. Many have proven unable to create or sustain any sense of solidarity across ethnic lines. The members of one ethnic group are unwilling to respect the rights of the members of other groups, or to make sacrifices for them, and have no trust that any sacrifice they might make will be reciprocated.

Recent events show that where this sort of solidarity and trust is lacking, the consequences can be disastrous. In some countries, the result is violent civil war, as in Rwanda, Yugoslavia, and various parts of the former Soviet Union. In other countries, the state has dissolved in a more peaceful way, as in Czechoslovakia, albeit with significant economic and psychological costs. In yet other countries, particularly in Africa, the state has stayed together, but is little more than a shell, a loose confederation of more or less hostile groups who barely tolerate, let alone cooperate with, each other.

To commence any answer to the question “Can democracy promote the general welfare?” requires attention to the meaning of “general welfare.” If this term is drained of all significance by being defined as “whatever the political decision process determines it to be,” then there is no content to the question. The meaning of the term can be restored only by classifying possible outcomes of democratic political processes into two sets – those that are general in application over all citizens and those that are discriminatory.

I. Introduction

Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.

My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.

I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.

In his critique of egoism as a doctrine of ends, G. E. Moore famously challenges the idea that something can be “good for” someone. Donald Regan has recently revived and developed the Moorean challenge, making explicit its implications for the very idea of individual welfare. If the Moorean is right, there is no distinct, normative property good for, and so no plausible objectivism about ethics could be welfarist. In this essay, I undertake to address the Moorean challenge, clarifying our theoretical alternatives so that we may better decide what to admit into our moral ontology and better assess what may be at stake in whether objectivists treat good or good for (or neither) as fundamental. I compare the Moorean and welfarist pictures of value, providing an account of the form and function of good for. According to this account “good for” expresses a distinct relational value that has its source in the value of persons. Good for value is thus a form of extrinsic value that provides agent-neutral reasons for action, and it plays a pervasive normative role in regulating child rearing, guiding individual life choices, and shaping social policy formation.

Recent behavioral economics studies have shown that third parties compensate players in Dictator, Ultimatum, and Trust games. However, there are almost no studies about what drives third parties to compensate victims in such games. It can be argued that compensation is a form of helping; and helping behavior, in a variety of forms, has been widely researched, especially with regard to motivators. Previous work on helping behavior has focused on empathic concern as a primary driver. In sharp contrast, anger is often seen as an antisocial motivator resulting in aggression. However, other research has shown that moral outrage, anger evoked by the violation of a moral rule or a social norm, can lead to the punishment of a perpetrator, often described as altruistic or pro-social punishment. Some of the motivations for pro-social punishment, namely a concern for justice or the restoration of community values, can also be realized through victim compensation. We therefore propose the hypothesis that moral outrage leads to compensating behavior above and beyond what is predicted by empathic concern, but only when a social norm has been violated. We test this hypothesis in two studies, both of which use modified trust games in which the investor experiences a loss due either to a social norm violation or some other cause. Study 1 shows that trait moral outrage predicts third-party compensatory behavior above and beyond empathic concern, but only when a social norm is violated. To better understand the causal mechanism, Study 2 directly manipulated moral outrage, showing again that moral outrage leads to compensation, but only when a social norm is violated.

The situationist literature in psychology claims that conduct is not determined by character and reflects the operation of the agent's situation or environment. For instance, due to situational factors, compassionate behavior is much less common than we might have expected from people we believe to be compassionate. This article focuses on whether situationism should revise our beliefs about moral responsibility. It assesses the implications of situationism against the backdrop of a conception of responsibility that is grounded in norms about the fair opportunity to avoid wrongdoing that require that agents to be normatively competent and possess situational control. Despite the low incidence of compassionate behavior revealed in situationist studies, situationism threatens neither situational control nor normative competence. Nonetheless situationism may force revision of our views about responsibility in particular contexts, such as wartime wrongdoing. Whereas a good case can be made that the heat of battle can create situational pressures that significantly impair normative competence and thus sometimes provide a full or partial excuse, there is reason to be skeptical of attempts to generalize this excuse to other contexts of wartime wrongdoing. If so, moral responsibility can take situationism on board without capsizing the boat.

Moral phenomenology is concerned with the elements of one's moral experiences that are generally available to introspection. Some philosophers argue that one's moral experiences, such as experiencing oneself as being morally obligated to perform some action on some occasion, contain elements that (1) are available to introspection and (2) carry ontological objectivist purport—that is, they purport to be about objective, in the world, moral properties or relations. In our article, we examine one version of this sort of argument that we call the “argument from phenomenological introspection.” Our investigation involves, first, clarifications of the various issues that are prominent in the argument from phenomenological introspection. We then proceed to argue that the argument from phenomenological introspection fails; that although one's moral experiences may carry ontological objectivist purport, whether they do or do not carry such purport is not something available to introspection. We call this claim of ours the “neutrality thesis”—the phenomenological data regarding one's moral experiences that is available to introspection is neutral with respect to the issue of whether such experiences carry ontological objectivist purport.

The two most important and central concepts in ancient ethical theory are those of virtue (aretē) and happiness (eudaimonia). This is well-known by now, as is the way that many scholars and philosophers have in recent years investigated the structure of ancient ethical theories, at least partly in the hope that this would help us in our modern ethical thinking by introducing us to developed theories which escape the problems that have led to so much frustration with deontological and consequentialist approaches. And there has indeed been considerable interest in developing modern forms of ethics which draw inspiration, to a greater or lesser extent, from the ancient theories. However, there is an asymmetry here. Modern theories which take their inspiration from Aristotle and other ancient theorists are standardly called virtue ethics, not happiness ethics. We have rediscovered the appeal of aretē, but eudaimonia is still, it appears, problematic for us. This has an important consequence for us, for in ancient theories virtue is not discussed in isolation; it is seen as part of a larger structure in which the overarching concept is happiness. If we focus on virtue alone and ignore its relation to happiness, we are missing a large part of the interest that study of the ancient theories can offer.

For most of the century and a half that began roughly with the later works of John Stuart Mill, the most important divide within liberal political thought was that between classical (or market, or libertarian) liberalism and welfare (or new, or redistributionist) liberalism. The questions that were important to the socialist/liberal debate also became important for debates within liberalism: What is the relationship between property and freedom? Between free trade and freedom? Is freedom of commercial activity on a moral par with other sorts of freedom? Is the alleviation of poverty or material need a more important political goal than freedom? How do freedom and equality fit together in a liberal understanding of justice? What degree of state economic planning, or state taxation and expenditure, is compatible with liberal freedom?

I

There are a great many ways in which a thing can be good. What counts as a way of being good? I leave it to intuition. Let us allow that being a good dancer is being good in a way, and that so also is being a good carpenter. We might group these and similar ways of being good under the name activity goodness, since a good dancer is good at dancing and a good carpenter is good at carpentry. Everything good at doing something D is good in a way, and for each activity D, being good at D-ing falls into the class of ways of being good which I call activity goodness.

Again, let us allow that being a good hammer is being good in a way, and that so also is being a good butter knife. We might group these ways of being good under the name equipment goodness, since a good hammer is good for use in hammering nails and a good butter knife is good for use in buttering bread. Everything good for use in achieving a purpose P is good in a way, and for each purpose P, being good for use in achieving P falls into the class of ways of being good which I call equipment goodness.

Again, let us allow that tasting good is being good in a way, and so also are looking good, sounding good, and so on. The class here is aesthetic goodness.

Is all goodness goodness-in-a-way? Intuitively, the answer is yes: it seems right to think that everything is good only insofar as it is good in one or more ways.

David Hume and Adam Smith are usually, and understandably, seen as developing very similar sentimentalist accounts of moral thought and practice. As similar as Hume's and Smith's accounts of moral thought are, they differ in telling ways. This essay is an attempt primarily to get clear on the important differences. They are worth identifying and exploring, in part, because of the great extent to which Hume and Smith share not just an overall approach to moral theory but also a conception of what the key components of an adequate account of moral thought will be. In the process, I hope to bring out the extent to which they both worked to make sense of the fact that we do not merely have affective reactions but also, importantly, make moral judgments.

We have long been accustomed to thinking of democracy as a major selling point of Western institutions. That a set of political institutions should be democratic is widely regarded as the sine qua non of their legitimacy. So widespread is this belief that even those whose institutions do not look very democratic to us nevertheless insist on proclaiming them to be such (though the number taking this gambit dropped dramatically around the end of 1989). Meanwhile, an adulatory attitude toward democracy has arisen in many quarters, and many theorists have taken up anew the idea that if democracy is the way to go in political institutions, then it must also be the way to go in “other” areas, notably in economic and social institutions. So there has arisen a call for “economic democracy” — which is taken to mean, especially, that the “means of production” should be managed by their constituent workers in concert rather than by some few who own, or act for the owners of, those enterprises. Robert Dahl, in his influential Preface to Economic Democracy, sums it up nicely when he proclaims a “stronger justification” for worker participation: “If democracy is justified in governing the state, then it must also be justified in governing economic enterprises; and to say that it is not justified in governing economic enterprises is to imply that it is not justified in governing the state.”

This essay offers a “nonideal” case for giving institutional priority to markets and private contracting in the basic structure of society. It sets out a “robust political economy” framework to examine how different political economic regime types cope with frictions generated by the epistemic limitations of decision-makers and problems of incentive incompatibility. Focusing on both efficiency arguments and distributive justice concerns the essay suggests that a constitutional structure that prioritizes consensual exchange is more likely to sustain a cooperative venture for mutual advantage.

Recent years have seen an increase of interest on the part of human rights theorists in the “supply-side” of human rights, i.e., in the duties or obligations correlative to human rights. Nevertheless, faced with the practically urgent and seemingly simple question of who owes the duties related to international human rights, few human rights theorists provide an elaborate answer. While some make a point of fitting the human rights practice and hence regard states as the sole human rights duty-bearers merely by referring to that practice, others criticize the “state-centric” approach to human rights duty-bearers and expand the scope of the latter to include any international institution beyond the state and even private actors. Curiously, however, even those more expansive accounts of human rights duty-bearers are usually very evasive about why it should be so and especially how it should work. The time has come to broach anew the issue of the bearers of human rights duties, and responsibilities of international institutions in human rights theory, addressing two challenges: focusing on relational and directed human rights duties specifically and not on duties of global justice in general, thereby distinguishing between human rights duty-bearers and other bearers of responsibilities for human rights, on the one hand, and accounting for and justifying the point of international human rights law and practice in this respect, thereby also securing internal arguments for reform, on the other. The essay’s argument is four-pronged. It starts with a few reminders about the relational nature of human rights and the relationship between human rights and duties and what this means for the specification of human rights duties. It then focuses more specifically on the identification of human rights duty-bearers, i.e., states and international institutions of jurisdiction like the European Union (EU), and the allocation of human rights duties to them. The third section of the article is devoted to the concurrent moral responsibilities for human rights that are incurred by other various responsibility-bearers outside institutions of jurisdiction. In the final section, the essay considers the (quiet) revolution potential of the EU’s fast-developing human rights’ duties, and discusses the normative implications of the development of universal international institutions’ human rights duties stricto sensu for international law and politics more generally.