The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration "field". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great leeway (...) with regard to immigrants. Under pressure, governments implement what the author calls a "trompe-l’oeil policy" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive "front-line policy" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such "threats" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such "front-line policy" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants. Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject (...) who is granted such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

This paper explores the relationship between the bonds of practitioner/patient trust and the notion of a justified lie. The intersection of moral theories on lying which prioritize right action with institutional discretionary power allows practitioners to dismiss, or at least not take seriously enough, the harm done when a patient's trust is betrayed. Even when a lie can be shown to be justified, the trustworthiness of the practitioner may be called into question in ways that neither theories of (...) right action nor contemporary discourse in health care attends to adequately. I set out features of full trustworthiness along Aristotelian lines. (shrink)

Background This study aimed to ask a sample of the general population about their preferences regarding doctors holding discretionary powers in relation to disclosing cancer diagnosis and prognosis. Methods The researchers mailed 443 questionnaires to registered voters in a ward of Tokyo which had a socio-demographic profile similar to greater Tokyo's average and received 246 responses (response rate 55.5%). We describe and analysed respondents' attitudes toward doctors and family members holding discretionary powers in relation to cancer diagnoses disclose. (...) Results Amongst respondents who wanted full disclosure about the diagnosis without delay, 117 (69.6 %) respondents agreed to follow the doctor's discretion, whilst 111 (66.1 %) respondents agreed to follow the family member's decision. For respondents who preferred to have the diagnosis and prognosis withheld, 59 (26.5 %) agreed to follow the doctor's decision, and 79 (35.3 %) of respondents agreed with following family member's wishes. Conclusions The greater proportion of respondents wants or permits disclosure of cancer diagnosis and prognosis. In patients who reveal negative attitudes toward being given a cancer disclosure directly, alternative options exist such as telling the family ahead of the patient or having a discussion of the cancer diagnosis with the patient together with the family. It is recommended that health professionals become more aware about the need to provide patients with their cancer diagnosis and prognosis in a variety of ways. (shrink)

Governments of all nations presume they possess full discretionary policymaking powers over the lands and waters within their geopolitical boundaries. At least one global environmental issue—the rapid loss of the world’s biodiversity, the sixth major mass extinction event in geological time—challenges the legitimacy of this presumption. Increment by increment, the present generation is depleting the world’s biodiversity by way of altering species’ habitats for the sake of short term economic gain. When biodiversity is understood as an essential environmental condition—essential (...) in the long term because it is the source of the biological resources upon which humans depend—then the strongly differential distribution of benefits and burdens between generations raises an issue of intergenerational justice. We receive the short-term benefits of economic development; future generations will receive the resulting burden of a biosphere in which one of the life-support systems necessary for humanity will have been compromised. Using Ronald Dworkin’s conceptions of distributive justice, it can be demonstrated that constitutional constraints on the discretionary powers of governments, for the sake of intergenerational justice, are entirely consistent with central tenets of liberal democracy. As a result, we should abandon to some extent the presumption that governments have full jurisdiction over the lands and waters within their boundaries. (shrink)

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity has one more purpose; namely, it allows for the process of decision-making—and not just (...) for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness. (shrink)

Zusammenfassung Der Geschäftsbereich Leistungssport des Deutschen Olympischen Sportbundes agiert als Common Agent, nämlich der Sportverbände und des Bundes­ministern des Innern bei der Verteilung der Sportfördermittel des BMI an die olympischen Spitzenverbände im DOSB. In diesem Beitrag wird theoriegeleitet ein Hypothesensystem entwickelt, welches beschreibt, nach welchen Kriterien der GBL bei der Verteilung der Mittel vorgeht. Es zeigt sich, dass neben den Bewertungskriterien, die im so genannten Förderkonzept 2012 formalisiert werden, diskretionäre Handlungsspielräume bestehen. Diese werden quantifiziert und mittels des Hypothesensystems interpretiert. Es (...) wird diskutiert, wie die Problematik einer Common Agency entschärft werden kann. (shrink)

How does the term ‘free will’ refer? This question seems to lie at the center of debates about whether the attitudes and practices that depend on our successful attributions of basic-desert-entailing moral responsibility ought to be preserved or eliminated. In this paper I tackle questions about the way that different reference-fixing conventions might inform disagreement between preservationists and eliminativists about free will and moral responsibility, and argue that even recent elimination-friendly work on reference fails to offer much real support for (...) eliminativism. In fact, making explicit the role that different motivating concerns play in rendering certain reference-fixing conventions operative for eliminativists and preservationists suggests at least one powerful reference-based argument in favor of preservationism. (shrink)

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique (...) these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents. (shrink)

House of Lords authority in Tesco v Secretary of State for the Environment [1995] 1 WLR 759 has reinforced the well-established principle that judicial review will distinguish between relevant and irrelevant considerations pertaining to the exercise of a power, and leave the weighing of the relevant ones to the decision-maker. It has also problematized the principle by insisting that relevant factors may adequately be taken into account even where the decision-maker allows them no influence (subject to challenge for irrationality). (...) It is difficult to accept that a legislative identification of relevant factors need not influence the decision-maker, and the article begins by observing that this proposition would probably not have been accepted at the time of Roberts v Hopwood [1925] AC 578. It is argued in the article, however, that the proper influence of the relevant can be accommodated within the decision-making process while upholding the Tesco principle. The article therefore charts the activities which are logically implicit in a decision-making process including the consideration and weighing of relevant factors, and locates opportunities for legal challenge. The influence of the expressly relevant must be felt when the decision-maker has to decide whether other factors are impliedly relevant. It will equally be registered when a basis for the assessment of weight is established (weight being impossible to gauge without the prior formulation of criteria of influence). The process of weighing itself is shown to require two separate assessments; the first particular to each factor, the second comparative. This distinction allows explanation of those explanation of those authorities which require substantial weight to be given to certain protected factors, and helps to define the nature of irrationality challenges to absurd weighing. In summary, the article takes a rigorous look at what weight is, how it is assessed, how it differs from relevance, and to what extent a flawed assessment of it can be challenged. (shrink)

This dissertation argues that the current tendency to define liberal constitutionalism in terms of the impersonal and formalistic ideals of the rule of law diverges from early liberal theories of constitutionalism, which were sensitive to the occasional need for extra-legal discretionary exercises of power to deal with the unpredictable contingencies of politics. This understanding of politics shaped the constitutional and political thought of liberal thinkers from John Locke, David Hume, and William Blackstone to Alexander Hamilton, James Madison, and (...) other Federalists who defended the extraordinary powers of the American presidency. Since these early liberals recognized that it would sometimes be necessary for an executive to perform extraordinary actions in response to unforeseeable events, they were reluctant to place excessive legal checks on executive power. Consequently, they emphasized the importance of limiting executive power to those with "fit characters." In particular, they looked to those politico-moral virtues associated with republicanism to supplement and enhance the constitutional machinery of government that was designed with the ordinary course of politics in mind. Although early liberal theorists and the designers of the American Constitution abandoned many of the core principles of republicanism, particularly its reliance on a virtuous and active citizenry as the best guarantee of free government, they preserved a place for distinctively republican virtues such as patriotism and disinterestedness in the office of the executive. In fact, the Federalists made the American presidency the primary repository of republican virtue in the new government. The first century of liberal constitutional theorists was actually skeptical of the ability of impersonal institutional devices such as the separation of powers and checks and balances to secure a free and effective government without the presence of fit characters. Since formal institutions are imperfect and often inadequate---both in dealing with political contingencies and in checking the executive---these thinkers supplemented legal and institutional safeguards with character requirements to minimize potential abuses of largely indeterminate executive powers irreducible to law. An abiding conviction that uncertainty is the only certainty in politics led them to prefer flexible approaches rather than the rigid formulas in theorizing constitutionalism. (shrink)

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. We demonstrate (...) that systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

Recent years have witnessed growing controversy over the “wisdom of the multitude.” As epistemic critics drawing on vast empirical evidence have cast doubt on the political competence of ordinary citizens, epistemic democrats have offered a defense of democracy grounded largely in analogies and formal results. So far, I argue, the critics have been more convincing. Nevertheless, democracy can be defended on instrumental grounds, and this article demonstrates an alternative approach. Instead of implausibly upholding the epistemic reliability of average voters, I (...) observe that competitive elections, universal suffrage, and discretionary state power disable certain potent mechanisms of elite entrenchment. By reserving particular forms of power for the multitude of ordinary citizens, they make democratic states more resistant to dangerous forms of capture than non-democratic alternatives. My approach thus offers a robust defense of electoral democracy, yet cautions against expecting too much from it—motivating a thicker conception of democracy, writ large. (shrink)

The special issue covers both fronts by presenting a conceptual analysis of arbitrary law-making that sets out to typify its various meanings, along an empirical account of its actual functioning in legal and political practice. As arbitrariness becomes a pressing concern for lawyers, politicians and scholars attempting to grasp the discretionary powers of judicial and administrative authorities vis-a-vis legal subjects, its social impact as well as its political consequences must be taken into consideration in order to fully comprehend how (...) central arbitrariness has become for a philosophical and a sociological account of law-making. Migration policy is precisely where arbitrariness vividly shows its face, and where its various forms unleash their most revealing implications. It is in this field that we must dig further if we want to know how this hitherto peripheral and surrogated dimension of legal decision-making stretches the leeway of legal officials to the very margin of legality, disclosing the social tension and the power struggle between their agency and the structures that condition and enable it. (shrink)

The discretionary powers of welfare state professionals are in tension with the requirements of the democratic Rechtsstaat. Extensive use of discretion can threaten the principles of the rule of law and relinquish democratic control over the implementation of laws and policies. These two tensions are in principle ineradicable. But does this also mean that they are impossible to come to grips with? Are there measures that may ease these tensions? We introduce an understanding of discretion that adds an epistemic (...) dimension (discretion as a mode of reasoning) to the common structural understanding of discretion (an area of judgment and decision). Accordingly we distinguish between structural and epistemic measures of accountability. The aim of the former is to constrain discretionary spaces or the behaviour within them while the aim of the latter is to improve the quality of discretionary reasoning. The focus in this article is on epistemic measures that are internally related to the main characteristic of accountability, namely justified use of discretionary power. (shrink)

In Australia as is the case elsewhere, ethics is a developing aspect of business behaviour. Many educational institutions and business enterprises have a strong interest in the subject, particularly from the practical viewpoint of creating an ethical culture in business that has substantial practical effects. In this paper, the codes of ethics of five large enterprises are examined. They were selected as being typical of a collection of corporate codes used in Australia held by the Ethics Research Group at the (...) University of Technology, Sydney. Two codes were from international companies: a chemical manufacturing company and a health, beauty and medical manufacturer. The other codes were from an Australian bank, an Australian federal government business agency, and an Australian mining company.Corporate codes of ethics rarely contain operational definitions to direct their addressees on situations of moral hazard and the required response, to achieve a particular desired ethical corporate culture. Consequently, addressees constitute the locus of ethical decision making in enterprises. By contrast, the language used in the corporate codes examined construct an authoritarian position in the writer/reader relationship from the overuse of grammatical structures such as relational clauses, the passive, nominalisation, grammatical metaphor and modality. Collectively, these structures communicate a strong sense of obligation and even powerlessness since a strong authoritarian tone is established which does not give the addressees the possibility of discretionary decision making. (shrink)

The term “off-label drug use” refers to drugs that have not yet acquired “approved” status or drugs that have acquired “approved” status but are used with a different dosage, route, or administration method other than that for which the drug has been approved. In New Zealand, the Medicines Act 1981 specifically allows for off-label drug use. However, this authority is limited by the Health and Disability Commissioner Regulations 1996 and the common law, which require that off-label drug use is of (...) an acceptable standard, that the patient should be fully informed, and that the patient should give informed consent. Off-label drug use is an important issue because the current law provides medical practitioners very wide discretionary power, without providing clarification for what is required of the practitioner in exercising his or her discretion in prescribing off-label. This paper discusses possible solutions to this issue, for example, establishing protocol for off-label use, an electronic database of off-label use, and the amendment of legal provisions. (shrink)

Michelle Madden Dempsey’s Prosecuting Domestic Violence: A Philosophical Analysis (2009) is an important book for many reasons. Amongst these are the prevalence of domestic violence and the extraordinary, largely unaccountable discretionary powers wielded by prosecutors in the United States. Against this background, Dempsey asks in particular what prosecutors should do when the victims of domestic violence withdraw their support from the proposed prosecution. In Prosecuting Domestic Violence, Dempsey provides a general account of prosecutorial practical reasoning that can be applied (...) to answer this question. Given that she argues that “particularly aggressive prosecution” is in at least some cases justified, the later chapters of the book address issues surrounding the victims of domestic violence: their rights and duties when it comes to prosecution and the measures that might be directed against victims who are unwilling to co-operate.What Dempsey calls her “central analytic tool” in .. (shrink)

Trust has generally been understood as an intentional mental phenomenon that one party has towards another party with respect to some object of value for the truster. In the landmark work of Annette Baier, this trust is described as a three-place predicate: A entrusts B with the care of C, such that B has discretionary powers in caring for C. In this paper we propose that, within the context of thick interpersonal relationships, trust manifests in a different way: as (...) a property of the relationship itself. We argue that this conceptualization has important implications for the debate over the ethics of interpersonal interventions. In particular, when trust is understood in this way, actions that would otherwise be deemed morally troubling may be permissible, or even morally desirable, on account of their role in strengthening trusting relationships. (shrink)

I offer an unorthodox argument for the thesis that prostitution is not just a normal job. It has the advantage of being compatible with the claim that humans should have full authority over their sexual life. In fact, it is ultimately the emphasis on this authority that leads the thesis that prostitution is a normal job to collapse. Here is the argument: merchants cannot (both legally and morally) discriminate whom they transact with on the basis of factors like the ethnicity (...) or the religion of their client; but if prostitutes are ‘sex merchants’, then they cannot (both legally and morally) discriminate whom they have sex with on the basis of these factors. Yet everyone should have the full discretionary power to refuse to have sex under any circumstances. (shrink)

This paper examines the concept of 'professional trust' and argues that trust is an essential component of what it means to be a 'professional'. The first part of the paper discusses the nature of trust in general and attempts to establish two main points: that we are all involved in relationships of trust and that all trust involves risk. The second section examines the idea of professional trust and draws on an analysis of knowledge provided by Michael Oakeshott that divides (...) knowledge into two components, 'information' and 'judgment'. The central argument is that the exercise of judgement through the possession of 'discretionary powers' is central to being a professional, but that judgement itself resists reduction to propositional formulation because it is essentially tacit and individual. The paper's focus is fairly narrow and does not examine, for example, the role of trust in teacher--pupil relationships, how trust may be related to learning or the role of trust in the pursuit of collaborative educational research. (shrink)

This essay examines neoconservative criticisms of equity planning, and the challenges against the right of government to regulate local development and land use. The specific concern of this essay is how, or if, local development administrators (equity planners), should use their discretionary powers to ensure that city officials and private developers promote and protect the interests of urban residents, particularly the poor and disadvantaged. The essay begins by discussing the alleged conflict said to exist between needy urban residents and (...) the more secure urban taxpayers. The contrary views of equity planners are then reviewed, and the tensions within the neoconservative arguments are exposed and critiqued. Finally, the dispute between equity planners and neoconservatives is further explored by examining the dispute over the voucher system to address the problem of equal educational opportunity in urban communities. (shrink)

The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with by means (...) of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)

It can be argued that the notion of the \'axiological polytheism\' is a key concept which characterizes liberal society (democracy) in late modernity. We can observe its significant presence in I. Berlin\'s concept of two liberties, and in J. Rawls\'s concept of the social contract under the veil of ignorance, to recall some crucial examples where state neutrality is developed and defended. I have earlier proposed that in spite of the acceptance of the \'value polytheism\' premise, it can be still (...) claimed that on the ground of the \'autopoiesis\' mechanism a political community as a body can legitimately prefer a comprehensive model of citizenship in order to keep the system on track. This is supported by the \'social distribution of knowledge\' argument. In my paper I try to develop this argument and to examine some obstacles it can face when possible implementation in the fabric of social and political institutions is concerned. In particular I consider some problems which are posed by the uncontrolled professional activity of some types of experts which in consequence (may) influence decisions of those who are equipped with discretionary power (like civil servants and the state apparatus); and by that token they actually may lead to shift of the whole system with regard to the above mentioned premise which seems to be constitutive of the liberal democracy. In other words, do experts qua experts possess the privileged position among other fellow-citizens as far an access to the government procedures are concerned and do they change the power system by their backstage influence and through turning the democratic system into grotesque show and manipulative facade. (shrink)

Much has been written by many distinguished persons about the philosophical, religious and ethical considerations of doctors and their involvement with torture. What follows will not have the erudition or authority of the likes of St Augustine, Mahatma Gandi, Schopenhauer or Thomas Paine. It represents the views of a very ordinary person; a presumption defended by the submission that many very ordinary persons have been, and will be, instruments for effecting, assisting or condoning the physical or mental anguish of others. (...) As practitioners of medicine, we are particularly vulnerable, since our particular knowledge and our privileged position may be so easily abused--to the detriment of others. Those of us who practice clinical forensic medicine have even greater responsibility by virtue of our daily contact with the enforcement of law, criminal procedure, and the machinations of the judiciary. We are thus particularly well placed to monitor, encourage or discourage the occurrence of evil practices within the community. It is imperative, therefore, that the ordinary doctor should be cognisant of, and be party to, a code of conduct formulated by his peers and having reference to his obligations as a citizen, and doctor, and to his ability to manipulate human activity. Forensic physicians have further discretionary powers as arbiters in the marriage of the art and ethics of healing with the principles and practice of justice. (shrink)

Due Process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this major new book, the author of the widely admired Discretionary Powers offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge (...) v. Baldwin the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not yet developed an approach which is entirely adequate to the task. In this timely book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution. Original, scholarly and thought-provoking, this major new study will be required reading for lawyers with interests in public law, civil and criminal procedure, civil liberties, legal theory and comparative law. (shrink)

This essay examines neoconservative criticisms of equity planning, and the challenges against the right of government to regulate local development and land use. The specific concern of this essay is how, or if, local development administrators (equity planners), should use their discretionary powers to ensure that city officials and private developers promote and protect the interests of urban residents, particularly the poor and disadvantaged. The essay begins by discussing the alleged conflict said to exist between needy urban residents and (...) the more secure urban taxpayers. The contrary views of equity planners are then reviewed, and the tensions within the neoconservative arguments are exposed and critiqued. Finally, the dispute between equity planners and neoconservatives is further explored by examining the dispute over the voucher system to address the problem of equal educational opportunity in urban communities. (shrink)

Long portrayed as a virtuous profession, teaching has always been embedded in notions of trust and trustworthiness. Alongside expectations of epistemic cultivation and development, is an implicit handing over of discretionary powers to ‘the trusted teacher’. At the height of #blacklivesmatter protests in 2020, however, high school learners all over South Africa took to social media—@yousilenceweamplify—to express their hurt and anger at their dehumanising experiences at some of the country’s leading schools. Their accounts not only exposed some schools as (...) intense sites of racial, religious, cultural, ethnic, and linguistic tension and conflict, but shattered presumptions about ‘the trusted teacher’. Following a consideration of what trust infers, and the potential harms that arise from epistemic mistrust, the paper considers what might be gained from philosophical engagements in the espousal of teaching as a relationship of epistemic trust, and which ensures the flourishing of both learner and teacher? How might philosophy of education assist teacher education programmes in attuning students to an understanding that being trustworthy as teachers resides in self-knowledge as well as knowledge of the differences of, and among others? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:152 BOOK REVIEWS with Weinrih's theory of formalism which Joseph Raz points out in his essay. One of the most serious of these deficiencies in my opinion is the role that is accorded to the judiciary. Weinrih's theory, as Raz shows, requires that when positive law is in conflict with the " form of law," positive law should he disregarded by the courts, and the courts in these cases (...) not only have the legal right to disregard the statutes of law hut even the moral duty to do so. To give such total discretionary power to the courts is certainly to offer an invitation impossible to re· sist, as the recent judicial history of the United States Supreme Court clearly shows, to autocratic and politically motivated judicial activism. The above remarks, inadequate as they are because of the constraints of space, may offer some indication of the rich diversity of natural law theories currently offering themselves for our consideration. Those interested in natural law theory either within the framework of moral theory, or legal theory, or both, will surely find that a careful reading of this volume will amply reward their efforts. St. John's University Jamaica, New York THOMAS A. FAY Metaphysics: An Outline of the History of Being. By MIECZYSLAW ALBERT KRAPIEC, O.P., translated by Theresa Sandok. New York: Peter Lang, 1991. Pp. 539. $69.95 (cloth). This volume is the second in Lang's Catholic Thought from Lublin series edited by Andrew Woznicki. Krapiec's work is a tour de force of Gilsonian Thomism as it founds metaphyscis upon a judgmental grasp of the act of existence in sensible things. The hook is unrelentingly Krapiec. Though there are abundant historical descriptions, there is a minimum of textual citation. Also, the reader can plainly see that Krapiec is intent upon presenting his understanding of metaphysics ad mentem Thomae. Three main parts comprise the hook. Part One is on the object of metaphysics-being as being (as existing). Part One contains the most crucial pages of the hook, viz., pp. 86-100. There Krapiec explains the attainment of this object. This portion is obviously the heart of the hook, and I will treat it in detail later. Part One also includes a lengthy exposition of the transcendentals. Part Two focuses on the structure of being and elaborates the following : act and potency, substance and accidents, matter and form, essence and existence, and the causes of being. There are two noteworthy points here. First, Krapiec's lengthy inclusion (pp. 313-374) of BOOK REVIEWS 153 matter and form within his metaphysics seems to have metaphysics swallowing up natural philosophy. One's misgivings are not assuaged by Krapiec's presentation of the division of the speculative sciences hack in his General Introduction. There the first degree of abstraction is no longer the home of natural philosophy hut the home of the modern humanistic and natural sciences (p. 28). The second degree harbors mathematics, while the third degree is home not only to metaphysics hut "philosophy" (pp. 28-9). The reader is left wondering what has happened to natural philosophy. I see no exigency' for Krapiec's metaphysics to eclipse natural philosophy. Moreover, for some Thomists, the move will create an unfortunate distraction from the good points of Krapiec's metaphysics. Second, by this reader's count, Krapiec presents no less than nine arguments for the real distinction between essence and existence. These arguments include the following: Aquinas's De Ente et Essentia argument that one can know what a phoenix is without knowing that one exists; the necessary character of existence as an essence vs. contingent realities; the monism of existence as an essence vs. the plurality of beings ; the infinity of existence as an essence vs. finite realities; and the reality of the potency/act distinction applied to essence-as·potency and existence-as-act. I cannot engage this involved topic in the short space of a review. I will say, however, that with Joseph Owens, I fail to see why a conceptual distinction between essence and existence is insufficient to deal with the above facts and problems. Underwriting my skepticism is the understanding that meanings can remain... (shrink)

This study aims to examine the perceptions of Black, Asian and Minority Ethnic staff in English local government on the ethical nature of their treatment at work, and its mediating effect on their Public Service Motivation. This is a particular imperative in a sector which itself delivers social justice within a strong regulatory system designed to ensure workplace equality and therefore is expected to be a model employer for other organisations. Employees place great importance on their fair treatment by their (...) employers and, in particular, the endeavour of managerial authority to implement equality at work based on their discretionary powers. 2580 valid responses were collected from 15,000 questionnaires sent to staff in five local councils in England. Our analyses show that BAME employees have a significantly stronger PSM than their white colleagues; however, this has been eroded by their perception of unfair treatment: being underpaid allied with a lack of effort from management to ensure an equal work environment, to be specific, to prevent discrimination, bullying, and racism at workplace. Most importantly, the perceived exertion made by management to ensure an equal work environment has a significantly strong mediating effect on PSM and a compensational effect on perceived lower pay. Theoretical and practical implications are discussed. (shrink)

Trust is taken to be one of the foundational values in the doctor-patient relationship, facilitating access to the benefits of health care and providing a guarantee against possible harms. Despite this foundational role, some doctors betray the trust of their patients. Trusting involves granting discretionary powers and makes the truster vulnerable to the trustee. Patients trust medical practitioners to act with goodwill and to act competently. Some patients carry pre-existing vulnerabilities, for reasons such as gender, poverty, age, ethnicity, or (...) disability, and these vulnerabilities can be exacerbated when such patients extend their trust to a doctor. Gender stereotypes reduce women's ability to challenge and thereby assess their doctor's competency. In addition, women are more likely to be distrusted by their doctors and have their experiences of medical symptoms discounted. In this paper, we analyze two extreme examples of breaches of medical trust that exploited the vulnerability of women in the health care system: the "unfortunate experiment" at the National Women's Hospital in New Zealand and the Harold Shipman murders of elderly patients in the United Kingdom, examining the potential role of gender in the outcomes with regard to trust. Major breaches of medical trust such as these typically lead to government inquiries, revisions of ethical guidelines, and substantive policy change in an effort to re-establish public and patient trust. We argue that the medical profession has an ethical obligation to put mechanisms in place to protect vulnerable patients from abuses of trust, to monitor colleagues' competence, and to be prepared to blow the whistle to protect patients who are not in a position to recognize misplaced trust. Such mechanisms will act disprosportionately to reduce harm to women as patients. (shrink)

Open-content communities that focus on co-creation without requirements for entry have to face the issue of institutional trust in contributors. This research investigates the various ways in which these communities manage this issue. It is shown that communities of open-source software—continue to—rely mainly on hierarchy (reserving write-access for higher echelons), which substitutes (the need for) trust. Encyclopedic communities, though, largely avoid this solution. In the particular case of Wikipedia, which is confronted with persistent vandalism, another arrangement has been pioneered instead. (...) Trust (i.e. full write-access) is ‘backgrounded’ by means of a permanent mobilization of Wikipedians to monitor incoming edits. Computational approaches have been developed for the purpose, yielding both sophisticated monitoring tools that are used by human patrollers, and bots that operate autonomously. Measures of reputation are also under investigation within Wikipedia; their incorporation in monitoring efforts, as an indicator of the trustworthiness of editors, is envisaged. These collective monitoring efforts are interpreted as focusing on avoiding possible damage being inflicted on Wikipedian spaces, thereby being allowed to keep the discretionary powers of editing intact for all users. Further, the essential differences between backgrounding and substituting trust are elaborated. Finally it is argued that the Wikipedian monitoring of new edits, especially by its heavy reliance on computational tools, raises a number of moral questions that need to be answered urgently. (shrink)

In a recent essay in this journal, Tom O’Shea defends socialist republicanism, marrying the value of freedom as nondomination to public ownership of the means of production. In this reply, I argue that the efficiency costs that often attach to public ownership may undercut the ability of the socialist republic to combat domination by public agents. I provide two reasons in support of this claim. First, the economic gains provided by efficiency can insulate individuals from the discretionary power (...) of other agents. Put briefly, the more wealth you have, the less the discretionary power threatens your basic interests. Second, the efficiency costs of public ownership also make it more difficult to hold accountable the managers of economic organizations. This shortcoming of O’Shea’s argument reveals a point hitherto neglected in the republican literature—caring about nondomination implies caring about efficiency. (shrink)

Aus dem Inhalt: Justice in General: E. Attwooll: Is the Idea of Justice Asymmetric? u C. L. Sheng: Injustice in Law Caused by Conflict between Equality and Equity u G. Barden: Approaches to Justice: The Economy and the State u C. Schmidt: The Concept of Justice in Economic Theory u M. Milde: Rawls, Pluralism and the Value of Contract Theory u J. Tasioulas: M. Walzer on Justice u L. Cedroni: An Ethological Approach to Law, Justice and the State uaR. Kevelson: (...) Justice as Artifice and Sign u A. Makolkin: Semiotics and Poeticity of Law and Justice u D. Ginev: Law and Morality from a Hermeneutic-Semiotic Perspective Rights in General: F. Viola: Personal Identity in the Human Rights Perspective u J.-R. Sieckmann: Justice and Rights u P. Comanducci: Justice and Rights u D. Wayand: Aboriginal Rights - Then and Now u M. Pavcnik: Argument der Grundrechte u D. B. Boersema: What's Wrong with Rights? u E. E. Dais: A Kantian Critique of Justice Holmes's Rights Theory Social and Environmental Rights: B. M. Baker: The Welfare State: Objectives, Subordinate Principles and Justifying Grounds u U. Penski: Zur Begruendung und Struktur sozialer Rechte u H. LaFolette: Two Forms of Paternalism u L. J. Mazor: Social Justice / Asocial Injustice u D. Wood: Constitutional Minimalism and the Discretionary Power of the Welfare State u u.a. (shrink)

Normative political theorists have been growing more and more aware of the many difficult questions raised by the discretionary power inevitably left to public administrators. This article aims to advance a novel normative principle, called ‘principle of restraint’, regulating reform of established administrative agencies. I argue that the ability of public administrators to exercise their power in accordance with the requirements of public reason is protected by an attitude of restraint on the part of potential reformers. Specifically, (...) they should refrain from any reform of an administrative agency that involves a switch to a considerably more loosely interconnected system of values underlying the work of that agency. To illustrate the importance of the principle of restraint, I examine a case from British health policy, showing that a recent reform of the National Institute for Health and Care Excellence well exemplifies the serious problems brought by any violation of that principle. (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the state's (...) legal authority and its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)

Short online essay on the state of policing in liberal societies, discussing how executive discretionary power has grown to such a degree that it has trended toward illiberal practices and policies.

Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do (...) not affect their access to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would. (shrink)

Conventional accounts of liberal democracy tend to obscure a basic fact: the phenomenon of administration. The American reception of the administrative state was self-consciously imitative of Continental models of state bureaucracy, as a remedy for the ills of democratic politics, but construed as a means of saving democracy from itself, and from lawyers and legalism, in the name of efficiency. The means was discretionary power, unaccountable to the courts and to voters. Reconciling this to democracy proved a challenge, (...) and continues to be one. (shrink)

France’s agreements on the joint management of migration flows figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time and (...) again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/gats liberalization. (shrink)

Health professionals, by agreeing to provide care, accept a fiduciary role that entails an obligation to preserve trust. We trust health professionals to be competent, to promote patient interests, and to properly utilize their discretionary power. While some health professionals argue that such activities as secretly screening for drugs or sexually transmitted diseases are necessary to fulfill their fiduciary obligations, these may actually constitute a breach of trust. In this paper, I argue that, in the specific case of (...) Munchausen’s Syndrome by Proxy, covert surveillance is ethically justifiable and does not constitute a breach of trust and an abuse of the fiduciary relationship. (shrink)

Recent sociological/philosophical treatments of expertise, best represented by the work of Steve Fuller, attempt to (1) reduce displays of expertise to sophistic exercises of discretionary power, and (2) refute the claim that because laypeople are epistemically inferior to experts, it is rational to defer to an expert's opinion rather than making up one's own mind. But upon inspection, Fuller fails to provide reasonable grounds for liberating laypeople from the tyranny of cognitive authoritarianism. Rather, he presents a patronizing description (...) of the expert‐lay relation, one that actually makes the public seem more ignorant than is warranted. (shrink)

Access to public healthcare services for Belgium’s undocumented migrants is regulated through a parallel, administrative procedure within the legal framework of Urgent Medical Aid. This imposes several constraints on their access to healthcare services. Drawing on empirical-ethical methodologies, we show how this procedure impacts on the relationship between patients with undocumented status and healthcare workers. We use the concept of relational autonomy to show how the imposed legal constraints reduce the formal treatment options available to healthcare workers, but simultaneously lead (...) to informal care practices, and how the latter increase the discretionary power of the healthcare workers. We argue that in this context, provision becomes unpredictable and arbitrary, with undocumented migrants tending to value strong personal relations with one particular, trusted healthcare worker. Although this leads to increased dependence, it also increases patients’ options and autonomy by providing access to wider professional networks attached to that healthcare worker. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on (...) Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

Corporations despite their status as legally fictitious persons are not such, and to confound them with real persons in even the minimal legal sense is to negate much of the force of the concept of rights when applied to the society. When corporations have rights individual rights become meaningless. While corporations may need some form of protection to make them financially feasible investments, they need not be given the full protection of rights which are assigned to the individual. A much (...) attenuated version of corporate rights is warranted. I would argue against Werhane's notion of a corporation possessing “secondary rights” which can be asserted only after the claims of individual rights have been met. Ibid., p. 62.One solution to the problems raised in this essay would be to ascribe rights to individuals only. This could occur without interfering with the financial independence of the corporation by a simple legal prescription that individuals within a corporation be held responsible for their activities and that the corporation p e r se not be blamed for individual actions. This is consistent with the judgments against the Nazi war criminals who were denied the defense of justifying their actions on the basis of following orders. Responsibility for those actions which are the result of the workings of the “invisible hand” cannot be ascribed to any individual or group of individuals. Donaldson is helpful on this point in recommending an “office of social responsibility” be created as part of the corporation to monitor those actions which otherwise escape scrutiny. Donaldson, Corporations and Morality, p. 207.A more radical solution is to restructure the corporation in such a way as to introduce the element of democracy in the workplace. Opponents would argue that such a practice would diminish the profit-making potential of the corporation by limiting the discretion of the corporate officers in making decisions. Similar arguments have been advanced against the democratic state. Yet democratic states have proven to be viable institutions capable of effective action and demonstrably more survivable than the authoritarian regimes which are the analogs of the corporation.Given the current hierarchical structure of the corporation and its ability to dissolve in the face of questions of responsibility, individual accountability is the only viable solution. This requires that members of the corporation not find cover behind the “invisible hand.” This in turn necessitates the granting of a greater degree of discretionary power to corporate functionaries at all levels. We cannot be responsible for a state of affairs over which we have no effective control. The courts would make the ultimate decision as to the assignation of responsibility in particular cases of corporate crime, with the stipulation that the ascription be to an individual and not “the corporation.” By making corporate officers individually responsible for their actions a much more effective deterrent to corporate crimes would be created. Corporations can easily afford most of the fines that are imposed on them, and corporations cannot be put in prison.The view of the corporation advanced here puts it in a legal and moral position greatly inferior to that of the individual as well as the state. Consequently, corporate needs and welfare must remain a tertiary concern. The rights of the individual must figure primarily, and the welfare of the state as preserver of those rights secondarily, in social policy decisions. The libertarian vision of the corporation is therefore a misguided result of the conflation of the corporation and the individual in the legal and moral realms. Corporations and individuals are ontologically distinct entities and must be recognized as such. The failure to do so has enabled corporations to abrogate individual rights with legal and moral impunity. Such a situation is inconsistent with the demands of a rights-based democracy. (shrink)

Pris en charge par des organismes spécifiques, les chômeurs sont dans l’obligation de mener des échanges réguliers avec leurs conseillers. Ces interactions articulent trois temporalités distinctes : un rythme des rendez-vous, un horaire de début et une durée. À partir de l’observation d’entretiens entre des chômeurs et leurs conseillers dans plusieurs types d’organismes d’accompagnement, nous interrogeons le pouvoir discrétionnaire que possèdent les agents administratifs en matière de temporalités, ainsi que les marges de négociation détenues par les publics. Cette perspective présente (...) le rapport des chômeurs et des conseillers comme un processus d’ajustements ou de conflits temporels. Elle montre que les temporalités administratives du chômage sont inégalement contrôlées et disputées au niveau des guichets, avec des résultats différents d’une institution à l’autre. Le pouvoir discrétionnaire des conseillers est particulièrement élevé en matière de rythmes de convocation. En revanche, les chômeurs disposent de ressources singulières pour discuter les horaires en Arbeitsagentur ou pour contester les durées à Pôle emploi. Les chômeurs en régime d’assistance, au sein des Jobcenter, apparaissent singulièrement démunis dans ces luttes temporelles. (shrink)

This paper considers prevailing environmental policy in the United States with the emphasis on liberty, markets, utilizing information, entrepreneurial discovery, and the economic analysis of political decisions. The general discussion is illustrated by the concern over global warming and policies for addressing this concern. The political incentives to confront environmental problems directly with mandates, restrictions, and subsidies ignore the power of liberty and market incentives to solve problems by fostering an impressive network of information transfer, increasing innovation, and expanding (...) prosperity. Indeed, most environmental policies systematically suppress liberty, censor the communication of information, and retard innovation and prosperity, with the result that they provide less environmental quality at greater cost than is possible. While such flawed policies might be justified in cases where pollution problems pose clear, serious, and immediate threats, we argue this is not true of global warming, and the most effective response to concerns over carbon emissions may be limiting the discretionary power of government to take direct action and rely on the indirect effects of liberty and market incentives to move us beyond the petroleum age more quickly and efficiently than will result from the direct action of government. (shrink)

The principle of mandatory prosecution (MP) is respected, extensively applied, and has a long-standing tradition in continental European countries, and it is highly valued in socialist nations. However, in recent decades, there has been a notable shift in its implementation within these countries, with numerous studies reflecting this change by presenting diverse perspectives on the necessity to alter, modify, or preserve this principle. One of the primary aims of this paper is to examine the scope of research on responses to (...) MP and the main reasons for maintaining or renewing MP highlighted in related publications. This paper employed a systematic literature review (SLR) to search the Scopus and Web of Science (WoS) databases, compiling a total of 28 papers spanning 50 years. These articles cover a wide range of countries and diverse jurisdictions currently applying either MP or discretionary prosecution (DP) principles. Furthermore, the literature review includes various arguments and discussions on how countries should respond to MP. Findings indicate that MP persists due to its enduring values, such as legality and equality, alongside its significant role in safeguarding the criminal justice system against arbitrariness and abuse of power. Our paper also reveals that the tendency to renew or replace MP is influenced not only by conflicting opinions but also by political factors and the consideration of victims’ discretion in certain offenses, particularly in cases of domestic violence. Additionally, three options for reconciling MP and DP principles are proposed to aid readers in understanding the transition process between these two fundamental principles. Ultimately, the paper advocates for further research on MP in current or former socialist countries, where applicable. (shrink)

Adolescents have increasing discretionary income, expenditures, and purchasing power. Inventory shrinkage costs $123.4 billion globally to retail outlets. Adolescents are disproportionately responsible for theft and shoplifting. Both parents and peers significantly influence adolescents’ monetary values, materialism, and dishonesty as consumers. In this study, we develop a theoretical model involving teenagers’ social attachment and their consumer ethics, treat adolescents’ money attitude in the context of youth materialism as a mediator, and simultaneously examine the direct and indirect paths. Results of (...) 1018 adolescents illustrate that social attachment discourages unethical beliefs directly, but encourages it indirectly through monetary values. Our multi-group analyses demonstrate a novel paradox: The correlation between parental and peer attachments is smaller in France than in China, but similar across gender. Parents contribute more than peers to social attachment in France, but both carry equal weight in China. There is a negative direct path for the Chinese sample and for girls. Indirectly, parental attachment prevents French teenagers’ unethical beliefs, whereas peer attachment promotes boys’ unethical intention, supporting the notion—bad company corrupts good morals. Across both culture and gender, monetary attitude excites dishonesty consistently for all adolescents. A negative direct path exists for Chinese boys only. Overall, social attachment reduces unethical beliefs. Parental and peer supports shape teenagers’ monetary intelligence and ethical or unethical decision making, differently, across culture and gender. We provide theoretical, empirical, and practical implications to ethical parenting, peer attachment, monetary values, and business ethics. (shrink)