Moral Liability Research Articles

Legitimacy Revisited: Moral Power and Civil Disobedience

Abstract In Legitimacy: The Right to Rule in a Wanton World, I offer both a conceptual analysis of legitimacy, the power-liability view, and a substantive moral theory, the free group agency view. Here, I defend my account against three challenges brought by Kjarsten Mikalsen. First, though I argue that conceptual analysis should not prematurely close open moral questions, it is not my view that conceptual analysis must have no substantive implications. Second, though I acknowledge that free group agency ordinarily supports a moral duty to obey, it is a feature, not a bug, that my conceptual analysis is consistent with moral theories that disagree with my preferred moral theory. Third, I argue that Mikalsen’s proposed explanation of justified civil disobedience, which sees law in such cases as creating a moral claim-right that entails a merely presumptive duty, is less perspicuous than the explanation given by the power-liability view. Along the way, I emphasize that the distinction between felicitous moral power and justified causal power is as important as the distinction between moral liability and moral duty.

Technology and the Civilianization of Warfare

AbstractThe Russia-Ukraine war demonstrates the crucial role of technology in modern warfare. The use of digital networks, information infrastructure, space technology, and artificial intelligence has distinct military advantages, but raises challenges as well. This essay focuses on the way it exacerbates a rather familiar challenge: the “civilianization of warfare.” Today's high-technology warfare lowers the threshold for civilian participation in the war effort. A notable example is the widespread use of smartphone apps by Ukrainian civilians, who thereby help the armed forces defend against Russian aggression. Through the lenses of international humanitarian law, conventional just war theory, and revisionist just war theory, this essay evaluates the normative dimensions of such civilian participation. The analysis shows that civilians can lose their legal protections when they use these apps to directly participate in hostilities, and this loss of immunity can be justified by Michael Walzer's conventional just war theory. Revisionism, however, puts the justness of the war at the forefront, and so sheds doubt on the moral liability of Ukrainian civilians. Considering the broader implications, including the blurring combatant-civilian distinction, indicates that such civilianization of warfare should not be welcomed; the risks will often outweigh the benefits. At a minimum, states ought to exercise restraint in mobilizing civilians and inform them of the implications of their actions.

Political Legitimacy: What’s Wrong with the Power-Liability View?

Abstract In this paper, I take issue with Arthur Isak Applbaum’s power-liability view of political legitimacy. In contrast to the traditional view that legitimate rule entails a moral duty to obey, here called the right-duty view, Applbaum argues that political legitimacy is a moral power that entails moral liability for the subjects of political rule. According to Applbaum, the power-liability view helps us explain how responsible citizens in some cases can act contrary to law while still recognizing the claims of law. Against Applbaum’s attempt at establishing the power-liability view through conceptual analysis, I argue that we cannot specify the moral implications of de jure legitimacy without considering the moral argument that justifies the right to rule. I further argue that Applbaum’s normative account of political legitimacy implies commitment to a normative idea that forms the basis of a strong case in favor of the right-duty view. Finally, I argue that the present defense of the right-duty view has resources to account for the moral phenomena that prompt Applbaum’s advocacy of the power-liability view.

Explaining the Conditions of Realization of Responsibility in Repairing Detriments Caused by Void Transactions

As long as the basic conditions of the accuracy of the contract and the specific conditions necessary for the accuracy of some contracts are met and the contract does not contradict public order and good ethics, the principle is the accuracy of the contracts. In case of loss or non-compliance with any of these conditions, the marriage will be invalid. Invalidation of the marriage has some effects, including the responsibility of one of the parties to the invalid contract in compensation for detriments to the other party of the marriage. Liability arising from a void contract and the obligation to compensate for the detriments arising from it is of non-contractual origin. In order to achieve the purpose of civil liability, i.e. to fully compensate for detriments, it is essential to determine the best method of compensation that courts in each case consider relative compensation and avoid compensating for any kind and order to pay cash for detriments in all cases. In the event of a breach of obligation, it is conceivable that it violates the obligation, which has a variety of types and includes civil or coercive liability, contractual liability, criminal and moral liability. The conditions for the realization of responsibility are: indisputableness, directness, personality, lack of prior compensation, foreseeeability, and detriment to the legitimate right to be detrimentd.In this paper, we try to use descriptive-analytical method and library study.Explaining the conditions of realization of responsibility in repairing detriments caused by void transactions to discuss.

Mortal Mistakes

Abstract What are the justifications for and constraints on the use of force in self-defense? In his book The Morality of Defensive Force, Jonathan Quong presents the moral status account to address this and other fundamental questions. According to the moral status account, moral liability to defensive harm is triggered by treating others with less respect than they are due. At the same time, Quong rejects the relevance of culpability to the morality of defensive harming. In this article I argue that this rejection of culpability is unfounded and that Quong fails to establish his account as superior to the culpability account of liability to defensive harm.

The Last Breakfast with Aunt Jemima and Its Impact on Trademark Theory

The generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral liability. They could not be authentically unifying if they promoted values inconsistent with contemporary notions of equality and anti-racism. This Article situates the adoption of racially explicit brands in a historic context and explores the reactions of the targeted communities. It then explains why multiple legal challenges to these federal trademark registrations failed. The traditional law and economics paradigm used to justify and explain trademark law does not account for strategic trademark decisions driven by values and expressive community connections. While law and economics captures the essential message a symbol must communicate to function as a mark, it neglects to explain why some marks fail or, in spite of spectacular success, may be abandoned. When a theory cannot account for what is happening in practice, it is time to reach for new tools to help explain the significant role trademarks play in reflecting and leading cultural dynamics. 
 The consumer investment framework is ideally suited to fill this theoretical gap. It accounts for expressive and value driven decision making. It embraces the many ways we engage with marks apart from the point of purchase. In addition to purchasing trademarked products, people invest trademarks with time, meaning, and money. Open dialogue between brand managers, influencers, and fans facilitates connections through shared values. By accounting for brand meaning, communities, and values, the consumer investment theory provides a better framework for understanding the abandonment of racist imagery in a way that traditional law and economics cannot. Where law and economics fails to function as an explanatory paradigm, the consumer investment model provides a theoretical framework for understanding how trademarks function if they are to succeed and what qualities make them resilient enough to remain resonant in a constantly changing cultural environment.

A Dance of Shadows and Fires: Conceptual and Practical Challenges of Intergenerational Healing after Mass Atrocity

The legacy of mass atrocity—including colonialism, slavery or specific manifestations such as apartheid—continue long after their demise. Applying a temporal intergenerational lens adds complications. We argue that mass atrocity creates for subsequent generations a deep psychological rupture akin to witnessing past atrocities. This creates a moral liability in the present. Healing is a process dependent on the authenticity (evident in discourse and action) with which we address contemporary problems. A further overriding task is to open social and political space for divergent voices. Acknowledgement of mass atrocity requires more than one-off events or institutional responses (the grand apology, the truth commission). Rather, acknowledgement has to become a lived social, cultural and political reality. Without this acknowledgement, healing, either collectively or individually, is stymied. Healing after mass atrocity is as much about political action (addressing inequalities and racism) as an act of re-imaging created through constant and contested re-writing.

Optimal contract under double moral hazard and limited liability

This paper investigates optimal contracts between risk-neutral parties when both exert efforts and the agent faces limited liability. We identify a sufficient and necessary condition for any contract to implement the second-best outcome, i.e., the best possible outcome in double moral hazard even when the agent faces unlimited liability. It is shown that a simple share-or-nothing with bonus contract (SonBo for short) is optimal and implements the second-best outcome when the condition holds. SonBo contracts have one degree of freedom, which is very useful in dealing with heterogeneous circumstances while still maintaining consistency in contracting. SonBo admits as special cases the option-like and step bonus contracts, which are widely used in dealing with limited liability. Nevertheless, we demonstrate that a step bonus contract is more powerful because an option-like contract can be problematic in some situations. The paper also discusses the performance of SonBo when the principal also faces liability constraint and investigates the optimal contract when the second-best outcome is not achievable.

The violence of theoretical abstraction

This essay discusses revisionist just war theory's most prominent theoretical approach -- reductive individualism. It carves out both reductivism's and individualism's distinct normative core. On this basis, it presents two arguments. (I) With individual moral liability, reductivism provides a criterion for assessing who can be permissibly killed in war, which it borrows from the morality of peace. Individualism puts the human in the center of moral concern. War being organized mass killing, an individual soldier's moral liability is indeterminable, pushing for the abstraction of individual of moral statuses and undermining individualism. (II) Reductivism claims that the moral rules governing individual self-defense in ordinary life are directly applied to individual interactions in war. However, it adjusts for the asymmetry between individual aggressor and defender in war to capture the moral status of the collective belligerent party. Reductive individualists are no real individualists and no real reductivists.

Ensuring the State’s Legal Liability is the Key Challenge of Legal Reform in the Modern Ukraine

Special attention has been paid to the fact that the doctrine of legal liability of the state to a person is increasingly affirmed in Ukraine as a theoretical basis for the functioning of state power in general and all its agencies in particular. However, despite the large number of scientific developments, the national legal science still can not boast of an unambiguous and generally recognized understanding of the essence of the phenomenon of legal liability of the state.
 It has been stressed that legal liability was interpreted for a long time as a kind of “continuation” of the state itself: in the context of the concept of state coercion means it was solely perceived as an instrument of state power for punishing offenders. However, such a concept denied the question about legal liability of the state itself as an equal personality of the subject of law.
 It has been stated that the phenomenon of legal liability of the state one can consider a certain continuation of the political and legal strategy on self-limitation of the state by law. Such liability is naturally considered a characteristic feature of the legal type of statehood, and it directly concerns only the democratic type of states. Instead, undemocratic states do not bear or acknowledge (or only declare) any real legal liability to society. Therefore, in terms of a democracy, the state is a real subject of liability to society, which is guaranteed on the normative and institutional levels.
 The current stage of development of the institution of legal liability of the state is characterized by the highest normative level of its institutionalization – constitutional one. This level ensures: 1) the irreversibility of the state’s course on the establishment of legal statehood; 2) fixing the starting, the main elements of the normative model of legal liability of the state; 3) completion of the registration of legal personality of the state in the modern world, which was incomplete without constitutional establishment of its legal liability; 4) the parity nature of the relations of the state with other subjects of law on the basis of a combination of dispositive and imperative, public and private components. The constitutional model of the state’s legal liability to a human being is based on the same principles in Ukraine. Such liability, in particular, is not limited to the political or moral liability of public authorities to society, but has the features of legal liability as applying measures of public and legal (constitutional or international) nature to the state and its agencies for the failure or improper performance of the duties.

Mondiale rechtvaardigheid afdwingen

Abstract Enforcing Global Justice: War, Necessity and Rights of Armed Resistance of the World’s Poor Global justice theorists have long focused on the nature and grounds of duties of the affluent to alleviate the plight of the global poor and to realize justice worldwide. The last few years has seen a flurry of work that shifts perspective to the agency and remedial rights of the global poor. Suppose due assistance is not forthcoming. Could this give the severely deprived a just cause to secure their basic rights by armed force? If so, under which conditions is it all-things-considered morally permissible for them to resort to violence? This article contrasts two possible ways of grounding and conceptualizing remedial rights of armed resistance against economic injustice. Some modern global justice-based accounts endow the global poor with limited rights to wage defensive war to force the affluent to comply with duties of global justice. The old right of necessity conditionally entitles the severely deprived to use armed force to secure access to privately-owned resources and spaces to meet urgent needs. While lethal force will on both accounts be seldom all-things-considered morally permissible in practice, my analysis reveals that the old right of necessity is, for better or worse, a more capacious ground for armed resistance than modern human rights of subsistence, as it sidesteps the issues of indeterminate and underdetermined moral liability.

Talking to others' selves: Why a valuational paradigm of agency fails to provide an adequate theoretical framework for moral responsibility, social accountability, and legal liability.

In this commentary, I highlight the importance of a proper discussion of the pragmatic implications of John Doris's paradigm for allocation of personal responsibility proposed in his new book Talking to Our Selves. By employing some classic concepts of the American common law tradition, I discuss why Doris's valuational understanding of agency fails to provide an adequate framework for moral responsibility, social accountability, and legal liability.

The Mélange of Innovation and Tradition in Maltese Law: The Essence of the Maltese Mix?

Aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the by-product of the "mixing" of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges.

What Makes a Person Liable to Defensive Harm?

On Jeff McMahan's influential ‘responsibility account’ of moral liability to defensive killing, one can forfeit one's right not be killed by engaging in an ordinary, morally permissible risk‐imposing activity, such as driving a car. If, through no fault of hers, a driver's car veers out of control and toward a pedestrian, the account deems it no violation of the driver's right to save the pedestrian's life at the expense of the driver's life.Many critics reject the responsibility account on the grounds that, first, it has draconian implications for threateners like the driver, and second, it contravenes the plausible principle that wronging one's victim is necessary for forfeiting one's rights. But I argue, drawing on the account's luck‐egalitarian underpinnings, that (1) the account lacks the draconian implications widely attributed to it, and (2) contrary to what many assume, wrongdoing is unnecessary for rights‐forfeiture. Via these arguments, I seek both to deepen our understanding of the responsibility account, and to reissue it in a more plausible and attractive form.

Creditor Commitment in a Sequential Investment Model

A simple contracting environment with a creditor who has wealth and a entrepreneur who has a two-period investment project is studied. After observing the partial completion of the project at the end of first period, the creditor may decide whether to refinance it or liquidate it. Contracting is subject to moral hazard and limited liability each period. The creditor prefers a contract that commits him not to refinance if and only if the extent of moral hazard problem is sufficiently high. Such a commitment may not be sequentially rational, however. The role of competition and hidden information in enforcing commitment is studied. When credit supply is scarce and the creditor lacks commitment, competition from other potential entrepreneurs may not be a credible deterrent against refinancing because of the wedge between the liquidation value of the output and its value as an input for second period. Sufficient conditions are developed under which hidden information makes commitment sequentially rational.

Attributing Weather Extremes to Climate Change and the Future of Adaptation Policy

Until recently, climate scientists were unable to link the occurrence of extreme weather events to anthropogenic climate change. In recent years, however, climate science has made considerable advancements, making it possible to assess the influence of anthropogenic climate change on single weather events. Using a new technique called ‘probabilistic event attribution’, scientists are able to assess whether anthropogenic climate change has changed the likelihood of the occurrence of a recorded extreme weather event (e.g. an extreme storm season, extreme rainfall, heatwave, drought, etc.). These advancements raise the expectation that this branch of climate science can contribute to climate adaptation efforts. This paper examines the normative underpinnings of these policy discussions. To date, the debates revolve around whether the findings of attribution science can be used to establish moral liability for harms resulting from climate change. On close analysis, this normative framework has serious shortcomings. The paper rejects the moral liability framework and suggests, through a review of the international climate negotiations under the UNFCCC, that the science of event attribution can inform adaptation policy within a risk-pooling and climate risk insurance framework. The proposed framework is defended both on normative grounds and on the basis of its potential application within the Warsaw International Mechanism for Loss and Damage under the Cancun Adaptation Framework.

Nonconsensual Neurocorrectives and Bodily Integrity: a Reply to Shaw and Barn

In this issue, Elizabeth Shaw and Gulzaar Barn offer a number of replies to my arguments in ‘Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity’, Journal of Ethics (2014). In this article I respond to some of their criticisms.

The Emergence of a New Area of Legal Practice: Corporate Social Responsibility

An evolving challenge that faces lawyers is the need to more securely integrate the litigation and policy dimensions of CSR lawyering-for lawyers to merge their reactive and proactive inclinations. ‘‘Most lawyers no doubt welcome the trend [towards extension of formal legal liabilities with new forms of ‘moral liability’], but it is worth asking whether the net result will be improved social and environmental performance on the part of targeted industries and companies, or whether it will be little more than a feeding frenzy for the legal profession.

THE MORALITY OF GREGARIOUS EGOISM

PrefaceI will here defend ethical egoism or what I like to call the moral theory of benign selfishness. What matters to me is to show ordinary people that they should act so as to make the most of their human lives.It is evident enough, not in need of proof, that most people are not altruists; they live their lives mostly by attempting to take decent enough care of themselves. They eat breakfast, wash up, get dressed, etc., most mornings instead of rushing out to help other people (unless these are members of their immediate family or those faced with some emergency). Most of us earn a living so that we can spend the funds from this on what we need and want, not on others. We pay for membership at a gym so as to work out and become fit. We try to eat right so we are reasonably healthy. We pay to go to the movies so that they'd entertain us. We go shopping for items we believe we need or we want.When some people facetiously claim that we live in an age of Me, me and me, they are largely right but the truth of what they say is not morally objectionable. We do care for ourselves, first and foremost - which includes our loved ones - without much doubt, but in a benign way. We do not operate as if we lived in a zero sum world, so our effort to promote our own welfare isn't some campaign conducted against other people and theirs.This is what I have in mind by benign selfishness. It is not what many cynical folks mean when they say, Well, isn't everyone selfish? that is, that everyone is embarking on an aggressive, forceful, fierce campaign to come out ahead of others, as in some kind of (rat) race. (The idea brings to mind how millions of people drive throughout the globe, mostly pushing hard to get to a place ahead of others! But this tends to occur mainly in public places, which is a result of a version of the tragedy of the commons.1)So I will be discussing how benign selfishness and the socio-political conditions that make it possible are desirable and nothing to lament or besmirch, the way many social philosophers appear to feel about them.1.My Pitch for Some Solid SelfishnessHardly anyone will dispute that most folks who chime in about ethics consider selfishness wrong. It is nearly axiomatic in movies, novels, sitcoms, etc. There have been exceptions in history and some of the most prominent ethical philosophers, such as Socrates and Aristotle, can even be said to have been ethical egoists or at least ones who championed the moral virtue of prudence as central for living a good human life. But after some significant changes in how human nature began to be understood, being selfish or selfinterested - or even prudent - began to be scoffed at, treated as a moral liability, not worthy of praise but of blame. But here is Socrates, in Plato's dialogue, Crito, being asked, you are gone, Socrates, how can we best act to please you? Socrates replies: Just follow my old recipe, my friend: do yourselves concern yourselves with your own true self-interest; then you will oblige and mine and yourself too.Of course, using one's common sense shows that being benignly selfish is what most of us are, normally, and routinely. When folks awake in the morning they proceed to begin to take good care of themselves before reaching out to help others. (Just as that announcement would have it on airplanes, first help yourself and then others in case there's loss of oxygen.)But apart from such common sense support, selfishness gets little respect (other than perhaps from psychotherapists who usually don't advise their clients not to care about themselves!). Moralists, however, often scoff at it. (Among them in our time are the famous ethics writers Peter Singer and Peter Unger.)So while selfishness is widely opposed by such official moralists as philosophers, priests, ministers, politicians, and pundits, most people will normally choose to be selfish instead of selfless. …

Should the Changing Character of War Affect Our Theories of War?

War has changed so much that it barely resembles the paradigmatic cases of armed conflict that just war theories and international humanitarian law seemed to have had in mind even a few decades ago. The changing character of war includes not only the use of new technology such as drones, but probably more problematically the changing temporal and spatial scope of war and the changing character of actors in war. These changes give rise to worries about what counts as war and thus what norms to use in evaluating a particular conflict. In this paper, I develop an argument that the changing character of war gives us reasons to take reductionist revisions of just war theory seriously. By reductionist theories of war I mean those revisions within the just war tradition that suggest that we can use ordinary peacetime interpersonal analyses of moral responsibility and liability to harm to decide what justice requires in times of war.