Modern contract law is characterized by a certain kind of unity and multiplicity. On the one hand, it establishes fundamental principles that apply to all contracts in general. But at the same time, it specifies further principles and rules for particular kinds of contracts or transaction-types that mark out their distinctive features, incidents and effects. Clearly, a viable theory of contract law should be able to provide a suitable account of both aspects. The central critical contention of The Choice Theory (...) of Contracts is that all prior approaches, in particular rights-based theories, have failed to do so. Indeed, Dagan and Heller argue that only a theory that explains the settled rules of contract law as teleologically oriented toward facilitating individuals’ pursuit of their different substantive goods, and thus as primarily power-conferring in this particularly robust sense, can provide the needed account. Such a theory, they believe, would be not only interpretatively accurate with respect to the actual law but also fully acceptable as a liberal view of contract. This Article challenges the core contentions of choice theory, suggesting why it may be unable to meet its own goal of explaining how contract law coherently specifies and integrates the general and specific dimensions of enforceable agreements. The Article looks into basic contract doctrines in order to specify a general conception of the contractual relation that can meet this desideratum and it sketches how, beginning with that conception, contract law unfolds a rich multiplicity of transaction-types. The resulting view is liberal but rights-based rather than teleological, and it proposes an alternative understanding of how the rules of contract law are power-conferring as well as duty-imposing. (shrink)

This chapter contains sections titled: Introduction The Challenge to the Distinctiveness and the Coherence of Contract Four Autonomy‐Based Theories Three Teleological Theories Concluding Remarks References.

This article examines methodological and ethical issues of ethnographic research through the lens of Emmanuel Levinas's philosophy. Levinas is relevant to a critical analysis of ethnographic methods because his philosophy turns on the problematic relationship between self and other, among other important problems that define and guide contemporary anthropological research, including questions of responsibility, justice, and solidarity. This article utilizes Levinas's philosophy to outline a phenomenology of the “doing” of fieldwork, emphasizing the contingency of face-to-face encounters over controlled research design. (...) This account provides a basis for going beyond the polarized opposition between objective and subjective ethnographic approaches. Levinas allows for an ethically informed ethnography premised upon an acknowledgement of risk and uncertainity over researcher control or reflexivity. Providing a handful of concrete examples, the article argues that critical self-reflection about the fundamental face-to-face dimension of fieldwork is central to ethnography's ethical possibilities. (shrink)

Although the law of contract is largely settled, there appears to be no widely-accepted comprehensive theory of its main principles and doctrines or of its normative basis. Contract law theory raises issues concerning the relation between law and morality, the role and the importance of rights, the connection between justice and economics, and the distinction between private and public law. This collection of six full-length essays, written by some of the most eminent scholars in the field, explores the general theory (...) of contract law from a variety of theoretical perspectives. The volume addresses a wide range of issues, both methodological and substantive, in the theory and practice of contract law. While the essays build upon past theoretical contributions, they also attempt to take contract theory further and suggest promising ways to develop theory of contract law. (shrink)

The process of obtaining informed consent in a teaching hospital in a developing country (e.g. Nigeria) is shaped by factors which, to the Western world, may be seen to be anti-autonomomous: autonomy being one of the pillars of an ideal informed consent. However, the mix of cultural bioethics and local moral obligation in the face of communal tradition ensures a mutually acceptable informed consent process. Paternalism is indeed encouraged by the patients who prefer to see the doctor as all-powerful and (...) all-knowing, and this is buttressed by the cultural practice of customary obedience to those ‘above you’: either in age or social rank. The local moral obligation reassures the patients that those in authority will always look after others placed in their care without recourse to lengthy discussions or signed documentation, while the communal traditions ensure that the designated head of a family unit has the honor and sole responsibility of assenting and consenting to an operation to be carried out on a younger, or female, member of the family. Indeed it is to only a few educated patients that the informed consent process is deemed a shield against litigation by the doctors. This paper later addresses the need for physicians to update their knowledge on the process of informed consent through the attendance of biomedical ethics courses, which should highlight socio-cultural practices that may make this process different from the Western concept, but perfectly acceptable in this setting. (shrink)

Non-human animals are as a matter of routine used as means to human ends. They are killed for food, employed for labour or sport, and experimented on in the pursuit of human health, knowledge, comfort and beauty. Lip-service is paid to the obligation to cause no unnecessary suffering, but human necessity is interpreted so generously that this is a negligible constraint. The dominant traditions of Western thought, religious and secular, have provided legitimation of the low or non-existent moral status of (...) beasts. The rival tradition, which includes the Neo-Platonists, Plutarch and Montaigne, is eccentric and archaic. But the teleologies and hierarchies of orthodoxy are equally incredible now and owe their greater respectability and influence to the inertia of custom. Disregard for beasts is supported partly by the vestigial and unowned belief that they are intended for our use, partly by a more recent piece of lore which is not only thought to be compatible with, but is sometimes held to be integral to, an enlightened scientific outlook, namely that beasts are mere complex stimulus—response mechanisms. The latter is a vexatious obstacle to progress but despite that the state of scientific and philosophical knowledge is now enormously more propitious for a re-appraisal of the moral status of beasts. Two moral philosophers, Peter Singer and Stephen Clark, have recently published books in which such a re-appraisal is attempted. Here I try to compare and assess some of the main features of their very different approaches. (shrink)

Viṣamapadavyākhyā: A Commentary on Bhaṭṭoji Dīkṣita’s Śabdakaustubha Attributed to Nāgeśabhaṭṭa. Edited by James W. Benson. American Oriental Series, vol. 97. New Haven: American Oriental Society, 2015. Pp. xl + 233.

In lieu of an abstract, here is a brief excerpt of the content:IntroductionIn 1974 at a gathering celebrating the seventh centenary of Bonaventure's death, Ignatius Brady reviewed the Quaracchi edition of Bonaventure's works. He noted various problems with the edition and considered the authenticity of a number of works discovered since the edition's completion in 1902. He argued against the attribution of all the texts then newly ascribed to Bonaventure, but pointed forward to texts that might still be looked for, (...) "either by identifying them in pieces already published or by searching for them in manuscripts."Brady singled out two texts in particular: a text he referred to as a principium biblicum, and defined as the opening discourse of a baccalaurius biblicus; and a principium magisteriale or aulicum, which Brady defined as a "recommendatio s. scripturae or recommendatio sacrae doctrinae given in brief form by the doctorandus in the aula/hall of the bishop and repeated at length soon after his promotion." He went on to lament that we possess lectures pertaining to these forms from great medieval theologians like John of La Rochelle and Thomas Aquinas, but none for Bonaventure. According to Brady, two primary reasons explained this gap in Bonaventure's corpus: 1) the Quaracchi editors really had no clear conception of the genre of principium and hence never looked for Bonaventure's; 2) some scholars reasoned that Bonaventure's well-known sermon "Christ the one teacher of all" functioned as his principium and hence looked no further. As Brady noted, however, "Christ the one teacher of all" could never function as Bonaventure's principium without doing extreme violence to the literary parameters set for that academic exercise. Bonaventure's principium thus remained at large and has continued to elude scholars since Brady's reflections thirty-four years ago. Until now.Though Brady's terminology requires modification in the light of more recent studies, the thesis I will argue for in this article is that the text we know as the De reductione is in fact the second half of Bonaventure's two part inaugural lecture as a master at Paris. The first half of the lecture I have identified and provisionally edited: an overlooked sermon beginning with the verse, Omnium artifex docuit me sapientia .In order to demonstrate my thesis that the De reductione is part of Bonaventure's inaugural lecture as a master or his principium, I will first review the specific terminology required to understand this literary genre. Second, I will focus on the form and subject matter of the De reductione itself in order to establish that it may be understood as sermon and that its subject matter fits within the genre of principia. Third, I will highlight known principia that share concerns and style similar to the De reductione thus further demonstrating that the text is Bonaventure's principium. Fourth, I will discuss two manuscripts that present the De reductione as a principium. In connection, I will also indicate how these two manuscripts present the relationship between Bonaventure's overlooked sermon Omnium artifex docuit me sapientia and the De reductione. Fifth, I will show how Omnium artifex forms an essential prologue to the De reductione.I. Clarifying the literary genre of the principiumThe term principium can cause confusion since the term takes on different meanings in accordance with the variety of meanings and associations the term possessed in the middle ages. Clarity regarding this term is crucial if the present thesis is to be proved and so I must review the basic ways the term could be used.In a broad sense, the term principium refers simply to "the inaugural lecture of a course," which in turn belongs to the much broader category of sermon. In this sense of inaugural lecture or sermon, Bonaventure's prologues to each of the four books of Peter Lombard's Sentences, the prologues to his biblical commentaries, and even to some degree the prologue to.. (shrink)

An illustrated study of the early twentieth-century transformation from Expressionism to Constructivism and beyond in the Central European arts. Central European Avant-Gardes presents the first interpretive overview of the complex webs of interaction among the artists and intellectuals of early twentieth-century Central Europe. The key stylistic transformation of the period was from Expressionism to Constructivism, as artists and writers, against a volatile background of war and revolution, saw the opportunity literally to construct a new world through their work. The borders (...) between the visual arts, photography, film, architecture, poetry, and typography were obliterated, as artists sought to transcend the forces of traditionalism to forge an elemental visual language that would overcome national and linguistic boundaries. Yet at the same time that these artists advocated pluralism and unity, their work engaged issues such as nationalism and tradition that still resonate in artistic circles today. The book, which accompanies a major exhibition organized by the Los Angeles County Museum of Art and curated by Timothy Benson, assisted by Monika Krol, is arranged around events and situations rather than by linear, art historical categories. It features hundreds of color plates and reproductions of documents; discussions of movements from Artificialism to Zenitism; essays on figures, publications, and exhibitions; and shorter "city views" of Belgrade, Berlin, Bucharest, Budapest, Cracow, Dessau, Ljubljana, £ódz, Poznañ, Prague, Vienna, Warsaw, Weimar, and Zagreb. (shrink)

Bambrough, R. Essay on man.--Quinton, A. Has man an essence?--Warnock, G. J. Kant and anthropology.--Honderich, T. On inequality and violence, and the differences we make between them.--Cherry, C. Agreement, objectivity and the sentiment of humanity in morals.--Gregory, I. Psycho-analysis, human nature and human conduct.--Gosling, J. The natural supremacy of conscience.--Scruton, R. Reason and happiness.--Wollheim, R. Needs, desires, and moral turpitude.--Hollis, M. My role and its duties.--Watkins, J. Three views concerning human freedom.--Letwin, S. R. Nature, history, and morality.--Passmore, J. Attitudes to (...) nature.--Benson, J. Hog in sloth, fox in stealth: man and beast in moral thinking.--Hare, R. Contrasting methods of environmental planning.--Self, P. Techniques and values in policy decisions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prophetic Evangelicals: Envisioning a Just and Peaceable Kingdom ed. by Bruce Ellis Benson, Malinga Elizabeth Berry, and Peter Goodwin Heltzel, and: Bearing True Witness: Truthfulness in Christian Practice by Craig HoveyGuenther “Gene” HaasReview of Prophetic Evangelicals: Envisioning a Just and Peaceable Kingdom EDITED BY BRUCE ELLIS BENSON, MALINGA ELIZABETH BERRY, AND PETER GOODWIN HELTZEL Grand Rapids, MI: Eerdmans, 2012. 225 pp. $35.00Review of Bearing (...) True Witness: Truthfulness in Christian Practice CRAIG HOVEY Grand Rapids, MI: Eerdmans, 2011. 258 pp. $27.00Christian thought and practice in North America—especially in the evangelical world—has undergone significant changes in recent years. Prophetic Evangelicals and Bearing True Witness deal with two areas where this is evident: first, the attention many evangelicals are now giving to social justice and peace and, second, their determination to witness to the truth about Christ in a manner consistent with the Christian gospel. Prophetic evangelicals is the name the editors apply to a new generation of evangelicals who believe that the gospel of Christ requires a commitment to proclaim and embody “the just and peaceable kingdom” (2). These evangelicals view Jesus as inaugurating “a new social order that is a radical alternative to the order of empire” (7).This trend among evangelicals to move beyond the preaching of the gospel in a narrow sense (over against the liberals’ emphasis on social justice) is the culmination of a trend that has been happening since the publication in 1947 of Carl Henry’s The Uneasy Conscience of Modern Fundamentalism. What is new about many younger evangelicals in recent decades is their embrace of the Anabaptist perspective on justice and peace. It is clear in the introductory and concluding chapters by the editors—with their appeals to John Howard Yoder and Stanley Hauerwas and their references to the “cultural captivity” of the church—that this is the trend they have in mind. One also reads hints of liberation theology in the editors’ references to the needs of the people being “holy” (12), to God’s being on the side of—and the gospel always being in favor of—the “least” (47), and to a critique of “the order of empire” (7). Of course, [End Page 221] non-Anabaptist evangelicals are also concerned with these themes as part of their commitment to justice and peace. But it is the distinctive emphasis of this book—with some exceptions among the contributors—that it highlights the ways Anabaptist evangelicals are prophetic.The chapters consist of expositions on the following biblical themes: creation, shalom, justice, kingdom, news, Mary, the cross, church, freedom, reconciliation, resurrection, and hope. The authors include a wide range of evangelicals: from a Kuyperian (Vincent Bacote on creation) to a committed Anabaptist (David Gushee on shalom), to postcolonial Christians (Gabriel Salguero on the cross, and Raymond Alfred on freedom). Although the term is slippery, the inclusion of two contributors raises the question about who the editors consider to be an “evangelical”: Helen Slessarov-Jamir (on justice) agrees with her students’ desire not to learn theology from “dead white men” (77) and embraces religious pluralism (85); Pamela Lightsey (on reconciliation) embraces liberalism and liberation theology and calls herself a “womanist theologian” (169).The chapters contain a diversity of contributions in length and quality. Some are good, short expositions of themes: creation (Bacote), kingdom (Christian Collins Winn), Mary—actually about suffering—(Ruth Padilla DeBorst), church (John Franke), and resurrection (Cherith Fee Nordling). Gushee’s chapter contains a good exposition of the Anabaptist view of shalom, along with typical sweeping statements about the “Constantinian compromise” and the evangelical compromise with the state (72). Two chapters deserve special recognition. Chris Boesel’s chapter, “News,” is an excellent account of the Christian call to justice as part of the full goodness of the gospel. He criticizes both liberal-progressive and evangelical-conservative assumptions about the church’s mission and calls for a “recovering evangelical faith” that pursues justice with repentance, humility, and a reliance on the Holy Spirit. Telford Work’s chapter, “Hope,” also articulates a perceptive critique of the activism of both the Christian Right and the Christian Left. Rejecting all alignments with worldly power, he calls on the... (shrink)

A few years ago, Peter Benson argued that unless claims in corrective justice are grounded on an independent, non‐distributive measure of entitlement, corrective justice collapses into distributive justice. More recently, Stephen Perry argued that the autonomy of corrective justice can be secured with something more modest, namely a free‐standing conception of harm. I argue, first, that Perry's account is closer to Benson's than we might at first think, and, second, that implicit in each is a view that (...) we ought to reject, namely that corrective justice can be autonomous only if there are rights or entitlements which the law does not confer but must, on pain of injustice, protect. In conclusion I defend the view that corrective justice takes as found the positive law's measure of those interests that merit protection in individuals' interactions with others, and explain what, on this account, is meant by holding that corrective justice is autonomous. (shrink)

Moral psychology studies the features of cognition, judgement, perception and emotion that make human beings capable of moral action. Perspectives from feminist and race theory immensely enrich moral psychology. Writers who take these perspectives ask questions about mind, feeling, and action in contexts of social difference and unequal power and opportunity. These essays by a distinguished international cast of philosophers explore moral psychology as it connects to social life, scientific studies, and literature.

For many years—and with some energy since Laudan’s “Confutation of Convergent Realism” —the scientific realist has sought to accommodate examples of false-yet-successful theories in the history of science. One of the most prominent strategies is to identify ‘success fueling’ components of false theories that themselves are at least approximately true. In this article I develop both sides of the debate, introducing new challenges from the history of science as well as suggesting adjustments to the divide et impera realist strategy. A (...) new ‘recipe’ for the prospective identification of working/idle posits is considered. (shrink)

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human (...) interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.” II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanisms of choice. We substantially concur with his position, and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view. III. Contracts. (7) Peter Benson contends our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures — more so than transfer theory. (8) Daniel Markovits and Alan Schwartz claim provocatively that contract theory must: capitulate before pluralism (as they endorse); leverage it; or fall victim to a so-called “embracing” approach (their charge against us). We reject the charge that choice theory is foundationally value-pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Each Article in this Issue advances the field; each prompts us to refine choice theory — all steps, we hope, toward a more just and justified law of contract. (shrink)

Functionalist justifications for the consideration requirement, and the many criticisms of them, are well developed in the literature. But Peter Benson offers a different sort of justification. He argues that contracts are transfers of ownership, and he builds his transfer theory around the consideration requirement. He claims that a bilateral and mutual act is required for ownership to be transferred. Therefore, he argues that consideration is a central part of what a contract inherently is because it works to (...) ensure that there is a bilateral and mutual relationship between the parties. In this article, I challenge this view. I accept for the sake of argument that contracts are transfers of ownership and that they must be bilateral and mutual acts. However, I argue that a sufficiently bilateral relationship can be established, even without consideration, through the acts of offer and acceptance. In doing so, I demonstrate that it is not necessary to view the doctrines of offer, acceptance, and consideration as being inextricably linked as Benson does. Moreover, drawing on insights from the civil law tradition, I show that a relationship of mutuality can be established in contracts that are not backed by consideration. Since I demonstrate that contracts can be seen as transfers of ownership even without consideration, I argue that the bulk of Benson’s transfer theory could remain intact if the consideration requirement were to be removed. Finally, I argue that, in light of recent developments in many common law jurisdictions, Benson’s transfer theory must be understood without the consideration requirement in order for it to withstand the test of time. (shrink)

In this book, Peter Achinstein proposes and defends several objective concepts of evidence. He then explores the question of whether a scientific method, such as that represented in the four "Rules for the Study of Natural Philosophy" that Isaac Newton invoked in proving his law of gravity, can be employed in demonstrating how the proposed definitions of evidence are to be applied to real scientific cases.