The value of liberty is one of our most fundamental commitments. Given this commitment, judgments concerning coercion are of profound moral significance. The concept of liberty is usually defined as the absence of coercion; so defined, the very important moral and political value of liberty is safeguarded only when coercion is excluded. Presently, the concept of coercion is inadequately defined, and in drastic need of clear analysis. An important area in which individuals express their liberty is through voluntary agreements made under the law of contracts. The moral defense of the law of contracts rests on the belief that contracts facilitate individuals' opportunities for self-determination; liberty being a necessary condition for self-determination necessitates the exclusion of all forms of coercion in contracts. Market interactions have a particular character and occur within a specific institutional framework. Using economic models, I argue that other accounts of coercion have failed to capture the unique character of coercion in market interactions. The "normalcy" criterion, which is the most prevalent approach to distinguishing coercive proposals from noncoercive ones, assumes that a person's status quo is an appropriate point from which to distinguish coercive proposals from noncoercive proposals. I argue that under certain ideal conditions in the market, a perfectly competitive market, this assumption might be legitimate. I utilize game-theoretic models to analyze the nature of coercive proposals in an imperfectly competitive market. The bargaining advantages that agents have, which are a function of certain background conditions, give them bargaining power over others with whom they negotiate. I argue that when the following conditions are present coercion can arise in the market: the status quo of an agent (or his "threat-advantage") is stronger in relation to the agent with whom he is dealing and he takes advantage of his stronger bargaining position, exploiting the deprivation that the weaker agent will face if he does not comply. I apply this analysis of coercion to the law of contracts, specifically, to the doctrines of duress and unconscionability.

In contrast with the procedural orientation of Athenian law in his day, Aristotle thinks that the lawcode should include principles which explain the rules of the lawcode and guide the interpretation of these rules in difficult cases. It should be determined by majority vote whether the decisions and proposals of political experts are consistent with the principles of the lawcode. Aristotle's views on practical explanation support his views on political deliberation. Someone has a techne rather than mere empeiria if he can give an account of the principles of an art and is able to explain the results of his deliberations in the art in terms of the principles. Such explanation does not have the same status as apodeixis in the epistemai, in that such an explanation cannot demonstrate that a conclusion follows necessarily from the principles of the art. However, a person who has experience in the art is able to evaluate deliberative options based on such arguments. / Aristotle has an account of practical intellection which, like Plato's, is theory-based. Aristotle's account is an adjustment of Plato's account in the light of Isocrates' criticisms of Plato. Aristotle combines the accounts of Plato and Isocrates---the emphasis of the one on explanation and the emphasis of the other on practical principles. Aristotle's views on practical intellection allow him to solve a problem associated with Plato's proposals in the Laws, which resemble in important respects Aristotle's own proposals. Plato intends in the Laws to introduce an arrangement on which the polis is governed by non-philosopher citizens educated by the lawcode. However, because of his views on practical intellection, Plato is forced to put the 'Nocturnal Council' in charge of 'preserving the laws'. Because of his views on practical intellection, Aristotle can accept that the majority can be in charge of preserving the law. Aristotle's views on practical intellection also allow him to say that one ought to spell out the principles of the lawcode and privilege them in the interpretation of the law---which is different from the Athenian, procedural approach to the law---even though no universally true claims are possible on practical issues.

This thesis explores the potential of the theory of legal pluralism. It examines the extent to which such a theory can contribute to an understanding of the regulatory crisis of the nation-state and serve as a point of departure for new regulatory approaches. A historical overview which looks at the disciplinary origins of legal pluralism is followed by an analysis of several legal pluralist concepts. This analysis serves as the basis for an elaboration of the descriptive and normative aspects of legal pluralism. The concept is compared with other social theories which are concerned with similar questions as legal pluralism. To illustrate the legal pluralist approach, same specific examples from the media sector are introduced. The thesis concludes by showing where a legal pluralist analysis might be appropriate and, moreover, how the theory can contribute to regulatory ways alternative to direct state intervention and market conceptions.

Thesis (Ph. D.)--Florida State University, 2006. / Advisor: Alfred Mele, Florida State University, College of Arts and Sciences, Dept. of Philosophy. Title and description from dissertation home page (viewed Sept. 20, 2006). Document formatted into pages; contains vii, 166 pages. Includes bibliographical references.

It has become almost universal practice for countries to adopt written constitutions that include a bill of rights. Yet we know little about the origins and evolution of the practice of constitution-writing on a global scale. Are bills of rights defining statements of the nation’s character and identity? Or are they more standardized documents that are similar across countries, and vary only at the margins? Are substantive constitutional features rooted in the society for which they are written, or are they borrowed from elsewhere? What are the origins of the world’s “words of liberty”? This thesis presents the first-ever systematic substantive exploration of the world’s written constitutions. It introduces a new database, based on the coding of the constitutions of 188 countries, for the period 1946-2006. With this data, it explores the historical trajectory of the world’s written constitutions and offers explanations for their substantive content. This thesis's most important finding is that constitutions are inherently “transnational” documents. As it turns out, substantive constitutional choices are remarkably unrelated to local needs and values. Constitutions do not express identity or national character. Instead, the most important predictor of whether any particular country adopts any particular constitutional provision is whether other countries previously did the same thing. Constitutions do not tell stories of the nation’s history, but rather tell stories of transnational interactions and international politics. As a result, constitutions have become at least partly standardized documents that vary along a small number of underlying dimensions. But this thesis also shows that not all constitutions are the same, and that there exists no evidence of a global constitutional convergence. Instead, the world’s constitutions divide in a limited number of constitutional families. This thesis is not currently available in ORA.

LL.D. / Please refer to full text to view abstract

What makes a good common law argument? Ronald Dworkin’s answer commands much respect within legal practice. To him, the correctness of a legal conclusion rests upon its capacity to fit within a narrative of normative progress that judges deliberately impose for the sake of (i) rendering overt the shared membership of discretely decided cases within a single determinate category (ii) depictive of moral attractiveness at its best. Yet, the inherent plausibility of Dworkin’s presentation of judicial reasoning has ironically resulted in the erosion of respect for the common law. If judicial narratives are imposed for aesthetic considerations, then legal conclusions must – per Kant – be mere idiosyncratic judicial desires that have the added quality of being objectively intelligible to other individuals who could nonetheless – owing to the absence of any criteria of norm correctness – justifiably disagree. If accurate, this characterization of legal decision-making would be anemic with modernity’s conviction that law is an entity inherently distinguishable from power because of the rationality – and therefore non-dogmatic nature – of its dictates. This thesis demonstrates – contra Dworkin – that judicial narratives go hand-in-hand with rationality. Judicial reasoning is thus of great importance to the aspirational goal of governance through law. As will be seen, only a constructed narrative renders possible the objective demonstrability (i) of the membership of discrete judicial decisions within the classificatory ambit of a specific norm and (ii) the legitimacy of that specific norm’s selection – from a set of countless other possibilities - via its evidential capacity to order those same discrete decisions tentatively asserted to be under its ambit into a coherent whole. Thus, because (i) the narrative is the methodological process by which a norm comes into agreement with its observed applications and (ii) truth is exactly this just-mentioned correspondence between intellect and reality, narrative construction is – quite properly – logic.

Please read the abstract in the section 00front of this document / Thesis (LLD)--University of Pretoria, 2006. / Jurisprudence / LLD / Unrestricted

Orientador: Pedro Geraldo Aparecido Novelli / Banca: Agemir Bavaresco / Banca: Ricardo Monteagudo / Resumo: O intuito do presente trabalho é analisar possíveis contribuições que o desenvolvimento dialético especulativo da Filosofia hegeliana, sobremaneira a Filosofia do Espírito Objetivo, traz à compreensão acerca dos direitos humanos e seu desenvolvimento da modernidade à contemporaneidade. Defende-se que as ideias contidas na filosofia hegeliana sejam uma possibilidade de se ultrapassar alguns limites existentes nas discussões tradicionais a respeito do tema, embasadas principalmente nas filosofias modernas do direito natural. Para tanto, optou-se por analisar a relação dos direitos humanos com a filosofia do direito natural, seguindo-se para a crítica hegeliana ao jusnaturalismo e, consequentemente, encerrando-se com sua compreensão de reconhecimento e sua influência na Filosofia do Direito e no estabelecimento das relações éticas na Sittlichkeit. / Abstract: The purpose of this academic writting is to analyse the possible contributions that the dialectical speculative development of Hegel's Philosophy, moreover the Philosophy of Objective Spirit, brings to light regarding human rights and its development from modernity to the present day. It is argued that the ideas contained in Hegel's Philosophy are a possibility of overcoming some existing limits in traditional discussions in regard with this topic, mainly based on modern philosophies of the Natural Rights. In order to do so, it has been opted to analyse the relation of human rights with the philosophy of natural rights, followed by Hegel's critic to Natural Rights, and as a result, closing with its understanding of the recognition and its influence in the Philosophy of Right and on the establishment in ethic relation in Sittlichkeit. / Mestre

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