Introduction -- "Every Legitimate Government is Republican": Rousseau's Debt to and Departure from Montesquieu on Republicanism -- What if There is no Legislator? Rousseau's History of the Government of Geneva -- Rousseau's Republican Citizenship: The Moral Psychology of The Social Contract -- Rousseau's negative liberty: Themes of domination and skepticism in The Social Contract -- Rousseau's Ancient Ends of Legislation: Liberty, Equality (& Fraternity) -- Property and Possession in Rousseau's Social Contract -- Political Equality Among Unequals -- On the Primacy (...) of Peoplehood: Nations and Nationalism in Rousseau's Social Contract -- Rousseau on Voting and Electoral Laws -- Rousseau and the puzzle of the Roman Republic -- Rousseau's Case against Democracy -- Rousseau's Dilemma or "Of Civil Religion" -- Entreating the Political: Politics and Theology in Rousseau's Social Contract -- Civil Religion and Political Unity: Social Contract 4.8. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), personal (...) accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

Extant social contracts, deriving from communities of individuals, constitute a significant source of ethical norms in business. When found consistent with general ethical theories through the application of a filtering test, these real social contracts generate prima facie duties of compliance on the part of those who expressly or impliedly consent to the terms of the social contract, and also on the part of those who take advantage of the instrumental value of the social contracts. Businesspeople typically participate in multiple (...) communities and, as a consequence, encounter conflicting ethical norms. Priority rules can be devised to resolve such conflicts. The framework of extant social contracts merges normative and theoretical research in business ethics and specifies a domain for empirical studies. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 3, Page 386-415, March 2022. In light of a growing body of scholarship that has cast doubt on the analytic import of spontaneous order, the purpose of my article is to rethink the intellectual relationship between Edmund Burke and Friedrich Hayek by suggesting that reading spontaneous order into Burke’s thought introduces greater tensions between the two thinkers than prior scholars have suggested. One crucial tension, I suggest, is that Hayek believed that contractual arrangements, (...) competitive markets and the rule of law could sustain the growth of social order, while Burke maintained that particular social institutions and practices should remain protected from the full power of voluntary contracts and exchange relations. I conclude by suggesting that the tensions between Hayek and Burke could serve as complementary instruments, rather than as foes, in strengthening the liberal project in modernity. (shrink)

Difficult moral issues in economic life, such as evaluating the impact of hostile takeovers and plant relocations or determining the obligations of business to the environment, constitute the raison d'etre of business ethics. Yet, while the ultimate resolution of such issues clearly requires detailed, normative analysis, a shortcoming of business ethics is that to date it has failed to develop an adequate normative theory.1 The failing is especially acute when it results in an inability to provide a basis for fine-grained (...) analyses of issues. Both general moral theories and stakeholder theory seem incapable of expressing the moral complexity necessary to provide practical normative guidance for many business ethics contexts. (shrink)

Downsizing has become a significant public issue that has not yet been significantly studied by business ethicists. It is proposed that reasonable social and psychological contracts bound the moral free space of managers contemplating downsizing; the degree of constraint is also dependent on the organization's resource munificence. A framework for considering the extent of managerial moral free space and implications thereof for managerial practice are offered.

On March 31, 2000, the Massachusetts Supreme Judicial court ruled that a contract awarding custody of frozen pre-embryos to the wife upon divorce was unenforceable because it violates public policy. This is the first reported case to address a contract between the clinic and the parties where the contract would have awarded the pre-embryos to one of the gamete providers. The decision in A.Z. v. B.Z. 431 Mass. 150 differs from decisions in the two other courts of last resort deciding (...) related cases where enforcement of contracts was supported. This case represents an important development in the legal doctrines associated with frozen pre-embryos as it explicitly differs from the other courts’ decisions in addressing pre-embryos at the same developmental stage. (shrink)

Firms have been relying on corporate political activity to achieve access and to affect public policy change for decades. Most research on CPA and public policy outcomes has implicitly assumed that access afforded by CPA results in an either- or policy outcome such as votes or election outcomes. Based on recent research on how CPA can be a strategic signal to government agencies, however, it is possible that CPA may in fact, have a linear association with public policy outcomes as (...) opposed to merely a dichotomous one, and we explore this relationship in the unique public policy context of government contract awards. We specifically analyze how higher levels of CPA impact the financial value of government contracts awarded to firms. Utilizing the S&P 1500 sample for 16 years we find that CPA has a one to one association with the value of contract awards, indicating that CPA and public policy outcomes can be linked in ways that motivate firms to continuously invest in CPA, to maximize their political rents. We discuss the theoretical and practical implications of this finding in light of extant research on CPA and its direct impact on public policy outcomes. (shrink)

The intention of the article is to offer stakeholders affected by mergers a criterion from which moral arguments may be generated for the organization of each individual case. The criterion: "Any operation causing legitimate interests to suffer vital infringement should be avoided in a merger process." A vital infringement of these interests is assumed when the merger undermines unique positive opportunities or considerable impairment in the future, impossible to overcome for the person affected without an unacceptable level of difficulty. Therefore, (...) we mainly concentrate on implicit contracts – which should be based on the principle pacta sunt servanda as well. These contracts are mandatory to run an economy that produces increasingly more knowledge-based goods. (shrink)

Integrative Social Contracts Theory is a popular framework to assist managers in making decisions on international moral dilemmas. Although the theory has been praised for its comprehensiveness and sophistication, commentators have raised concerns regarding the justification and identification of substantive hypernorms, fundamental moral principles valid across cultures. This paper introduces the deliberative test, a new method for testing the cross-cultural validity of ethical norms in ISCT. The test relies on the concept of Deliberative Capacity, arising from new developments in system-level (...) deliberative democracy research, which studies deliberation at the level of national societies and over time. Based on this recent stream of research, the deliberative test has the potential of providing better guidance for managers to decide which norms to follow in case of conflicting standards between home and host countries. (shrink)

Integrative social contracts theory (ISCT) uses empirical methods to develop guidelines for international business ethics. This article criticizes ISCT in terms of the way people actually think about contracts and agreements around the globe. Differences in orientations to communications context, moral reasoning, and institutional and structural conditions make the identification of authentic norms, hypernorms, and relevant communities problematic. The difficulties of the empirical methods suggest recourse to more traditional theoretical approaches for the identification of hypernorms as well as a stronger (...) test for the compatibility of authentic norms with hypernorms. (shrink)

The concept of integrity appears in many arguments and theories in business ethics and organizational behavior where it plays multiple roles. It has been shown to have desirable organizational outcomes and is held as important by the academic and practitioner alike. Yet despite its prominence there are a variety of approaches to defining and conceptualizing it and little existent theory to explain its nature. We offer integrative social contracts theory (ISCT) as a framework that can anchor integrity in ethical theory (...) and also encompass aspects of integrity such as wholeness, consistency, and authenticity. In addition we show how ISCT can resolve some of the challenges to definitions of integrity that have been raised in the literature and hence we provide some suggestions for future academic research and suggestions for the practitioner. (shrink)

This article shows that business ethics is not capable of explaining the responsibility of limited organised collectives such as chains, sectors and industries. The responsibility of the pharmaceutical industry to make AIDS blockers available for patients in Africa is an example of such a sector responsibility. By using system theory, it is possible to understand responsibility at the level of a social system. The Integrative Social Contracts Theory has been extended to determine this system's responsibility.

Long used as a tool for medical compliance and adhering to treatment plans, behavior contracts have made their way into the in-patient healthcare setting as a way to manage the “difficult” patient and family. The use of this tool is even being adopted by healthcare ethics consultants (HECs) in US hospitals as part of their work in navigating conflict at the bedside. Anecdotal evidence of their increasing popularity among clinical ethicists, for example, can be found at professional bioethics meetings and (...) conversations and idea-sharing among practitioners on HEC social media. While there are a handful of papers gesturing toward a bioethical critique of behavior contracts of various types, the use of behavior contracts in the context of interpersonal conflict has not been vetted by bioethicists to determine their ethical legitimacy or efficacy. In this paper, we highlight a set of ethical concerns that we believe must be addressed before continuing or widespread implementation of behavior contracts to manage the “difficult” patient or family. (shrink)

This thesis aims to determine whether international gestational surrogacy contracts are exploitative, and whether they should be prohibited. I chose a group of women working as surrogates at Kaival Maternity Home and Surgical Hospital, in Anand, Gujarat, India as a study group. After examining their life circumstances, I argue that these women live in unjust circumstances caused by institutional sexism and poverty. I critically assess arguments launched against surrogacy, organ trade, and prostitution and find that none of these are sufficient (...) for demonstrating that contracts involving the sale of the body are necessarily exploitative. I find that surrogacy is exploitative because of a complex set of social conditions. Further, the contracts are beneficial to both the woman acting as surrogate and to the couple hiring her. I conclude that international gestational surrogacy is exploitative yet mutually beneficial, and prohibiting surrogacy would be harmful unless accompanied by drastic social change. (shrink)

Social contract theory offers a powerful method and metaphor for the study of organizational ethics. This paper considers the variant of the social contract that has arguably gained the most attention among business ethicists: integrative social contracts theory or ISCT [Donaldson and Dunfee: 1999, Ties That Bind (Harvard Business School Press, Boston)]. A core precept of ISCT - that consent to membership in an organization entails obligations to follow the norms of that organization, subject to the moral minimums of basic (...) human rights - is a reasonable and appealing notion. One potential challenge for those attempting to apply this idea, however, lies in the dynamic nature of social norms. Organizational norms evolve, often through the conscious efforts of community members and leaders. As currently formulated, ISCT offers a framework that under-appreciates the evolving nature of moral norms. In this paper, we extend ISCT by considering the circumstances under which the terms of and parties to social contracts change. We also consider a number of principles that should be considered as the terms and parties to organizational social contracts change. (shrink)

Integrative social contracts theory (ISCT) has been an influential theory in normative business ethics for well over a decade, drawing attention both as an object of criticism and as a source of inspiration. In this paper I argue that, despite this attention, the fact that it is a genuinely pluralistic theory, in the tradition of pluralistic theories of political philosophy, is often overlooked. It is in the notion of moral free space that this pluralism is most clearly expressed. This oversight (...) is unfortunate for two reasons. Firstly, it prevents the potential of ISCT, as a normative theory of business ethics, from being appreciated fully; secondly, it leads us to ignore resources that could help tackle its most problematic flaws. In this second respect, I show how some of these flaws could be addressed by paying closer attention to the similarities between ISCT and John Rawls' theory of Political Liberalism. (shrink)

In this paper, I focus on the fiction of the retroaction of the condition in contracts, a very old tool of law which may be traced back to Roman antiquity. In the first part, I introduce the notion of a contract with a suspensive condition, i.e. a contract whose efficacy is subordinated to a future uncertain event. As will be addressed in the second part, this kind of contracts is often linked to the fiction of the retroaction of the condition (...) (e.g. the French Code Civile 1179 and the Italian Codice Civile 1360): When the condition of the contract is fulfilled we should do as if the condition was fulfilled at the very time of the stipulation of the contract. In the third part, I turn to an attempt by the young Gottfried Wilhelm Leibniz to rationalize this fiction: Although – as every fiction – false, the retroaction of the condition allows us to reach true conclusions with respect to a deterministic metaphysics. Eventually, after having raised some objections to the Leibnizian account, I develop an alternative rationalization of the fiction: The fiction does indeed lead us to true conclusions because the same conclusions may be reached by relying on an equity-principle or, alternatively, on a merely possible yet expedient law. (shrink)

This research documents consumers’ potential to monitor corporations’ License to Operate through their consumption responses to corporate social responsibility failures. The premise is that the type of social contracts or standards in place may determine how consumers, through their individual and collective behaviors, can play a direct role in influencing corporate behavior, when corporations fail to meet social responsibility standards. An experiment conducted with a large sample of consumers in the United States shows that consumers respond differently to a company’s (...) failure in its social responsibilities depending on whether the violated standard is a government mandate or a voluntary commitment and depending on the consumers’ own environmental consciousness. The findings highlight the potential power of individual consumers and consumer collectives in narrowing the governance gaps relative to social and environmental issues and reducing the likelihood of CSR failures. (shrink)

Fiester and Yuan discuss important ethical concerns regarding the use of behavior contracts in addressing conflict with patients and families labeled as “difficult” (Fiester and Yuan 2023). We agre...

Prescription opioid abuse (POA) is an escalating clinical and public health problem. Physician worries about iatrogenic addiction and whether patients are ‘drug seeking’, ‘abusing’ and ‘diverting’ prescription opioids exist against a backdrop of professional and legal consequences of prescribing that have created a climate of distrust in chronic pain management. One attempt to circumvent these worries is the use of opioid contracts that outline conditions patients must agree to in order to receive opioids. Opioid contracts have received some scholarly attention, (...) with trust and trustworthiness identified as key values and virtues. However, few articles have provided a critical account of trust and trustworthiness in this context, particularly when there exists disagreement about their role in terms of enhancing or detracting from the patient–physician relationship. This paper argues that opioid contracts represent a misleading appeal to patient–physician trust. Assuming the patient is untrustworthy may wrongfully undermine the credibility of the patient's testimony, which may exacerbate certain vulnerabilities of the person in pain. However, misplaced trust in certain patients may render the physician vulnerable to the potential harms of POA. If patients distrust their physician, or feel distrusted by them, this may destabilise the therapeutic relationship and compromise care. A process of epistemic humility may help cultivate mutual patient–physician trust. Epistemic humility is a collaborative effort between physicians and patients that recognises the role of patients’ subjective knowledge in enhancing physicians’ self-understanding of their theoretical and practice frameworks, values and assumptions about the motivations of certain patients who report chronic pain. (shrink)

Fiester and Yuan (2023) address an important, hitherto underdiscussed issue: ethical hazards of behavior contracts linked to patients’ and families’ demeanor in interacting with the healthcare team...

Business and Society Review, Volume 126, Issue 1, Page 3-23, Spring 2021.

This critical commentary is presented in two parts. The first section, “Intersecting Contracts: Conceptual Interventions and Aims,” provides an overview of Mills's analysis of the racia-sexual contract and the divergent positions of white men, white women, nonwhite men, and nonwhite women. The second section, “Privilege and Patriarchy: Does ‘Race Generally Trump Gender’?,” shows how Mills offers an uneven representation of critiques presented by women of color theorists. For example, he focuses on the critiques of white women, emphasizing the asymmetry between (...) white women and nonwhite men as well as the tensions between white women and nonwhite women. This article also problematizes Mills's claim that “race generally trumps gender” and argues for a more nuanced analysis of nonwhite men's participation in patriarchy and privilege. (shrink)

The term takyīf fiqhī stands for one crucial concept in Islamic jurisprudence and refers to one of the important steps in the process of formulating fatwā. It basically revolves around the categorization of particular issues under the appropriate rules and precedents established in Islamic juristic thought. The present article attempts to examine the concept of takyīf fiqhī in a comprehensive manner in terms of its meaning, authority, types, importance, and governing criteria as can be gleaned from the works of Sharī‘ah (...) scholars. This is then followed by an exploration of its application to modern contracts, taking as a case study the Central Provident Fund Nomination in Singapore. The article concludes with the view that the Central Provident Fund Nomination, in terms of its essential characteristics and objective, resembles the Islamic will contract as discussed in books of Islamic Jurisprudence. (shrink)

In many jurisdictions, legal frameworks afford patients the opportunity to make prospective medical decisions or to create directives that contain a special provision forfeiting their own ability to object to those decisions at a future time point, should they lose decision‐making capacity. These agreements have been described with widely varying nomenclatures, including Ulysses Contracts, Odysseus Transfers, Psychiatric Advance Directives with Ulysses Clauses, and Powers of Attorney with Special Provisions. As a consequence of this terminological heterogeneity, it is challenging for healthcare (...) providers to understand the terms and uses of these agreements and for ethicists to engage with the nuances of clinical decision‐making with such unique provisions surrounding patient autonomy. In theory, prospective self‐binding agreements may safeguard patient's “authentic” wishes from future “inauthentic” changes of mind. In practice, it is unclear what may be comprised within these agreements or how—and to what effect—they are used. The primary focus of this integrative review is to curate the existing literature describing Ulysses Contracts (and analogous decisions) used in the clinical arena, in order to empirically synthesize their shared essence and provide insights into the traditional components of these agreements when used in practice, the requirements of their consent processes, and the outcomes of their utilization. (shrink)

When a physician employment relationship terminates, the physician–patient relationship may also be terminated by enforcement of a covenant not to compete, which typically forces the physician to leave the geographic area for a period of time. This gives rise to several ethical dilemmas. The public interest is compromised when enforcement of these covenants contributes to the shortage of physicians in the community, and individual patients are harmed when their physicians are no longer available. The authors undertook a unique study to (...) explore physician perspectives concerning the ethics of banning a physician from practice and the impact of the ban on both the physician and the physician’s patients. The results identified harmful effects that have not been raised in prior scholarly articles or reported court opinions. After reviewing the legal background of covenants not to compete, this paper presents the results of that study and concludes that resorting to the legal system for enforcement of covenants not to compete is not always the ethical course of action. (shrink)

Can private companies legitimately regulate sharing markets, and if yes, how? Whereas scholars have either criticized sharing platforms for expanding into private and public arenas or welcomed them to counterbalance encroaching government regulations, studies document their unbridled popularity. On the basis of a special version of social contracts theory pioneered by James Buchanan, we develop a heuristics that helps guide reasoning about the legitimacy of the sharing economy’s regulatory function. First, we discuss the conditions under which free and responsible individuals (...) deliberately subject themselves to rules without their prior direct participation, that is, exit, voice, and constitutional limits. Second, we suggest sharing platforms can use novel ordo-responsibilities to establish a sharing constitution that takes these conditions into account. Third, we argue that sharing platforms can legitimately do so within an enabling institutional environment in society, the provision of which relies on the joint efforts of sharing platforms, political actors, and civil society. (shrink)

This article introduces several papers on social contracts and business ethics, published in the April 2005 issue of the journal "Business Ethics Quarterly.".

Under present accounting rules, lessees frequently structure contracts for leased assets, in situations where they enjoy benefits similar to outright ownership, in a way that keeps both the leased assets and related liabilities off their books. This method of accounting creates off-balance sheet financing and is called operating lease accounting. The paper debates the ethicality of intentionally structuring lease contracts to avoid disclosing leased asset and liability amounts and describes the “slippery slope” of rule-based accounting for synthetic leases and special (...) purpose entities, that, in the author’s opinion, led to the accounting debacles at Enron and other companies. The ethical intent that is implicit in the Securities and Exchange Commission and Financial Accounting Standards Board regulations is discussed and suggestions for improving the ethicality of financial reporting are provided. (shrink)

This is a study of the treatment of library patron privacy in licenses for electronic journals in academic libraries. We begin by distinguishing four facets of privacy and intellectual freedom based on the LIS and philosophical literature. Next, we perform a content analysis of 42 license agreements for electronic journals, focusing on terms for enforcing authorized use and collection and sharing of user data. We compare our findings to model licenses, to recommendations proposed in a recent treatise on licenses, and (...) to our account of the four facets of intellectual freedom. We find important conflicts with each. (shrink)