Table of Contents

Norms of Equality Implicit in Capitalism

Robert T. Miller, University of Iowa College of Law, New York University - School of Law, Classical Liberal Institute

Human Dignity and the Rule of Law

Stephen Riley, University of Utrecht

Contentious Modes of Understanding Chinese Commercial Law

Tianshu Zhou, China University of Political Science and Law
Mathias M. Siems, Durham University - Durham Law School, University of Cambridge - Centre for Business Research

Comparative Legal Cultural Analyses of International Economic Law: Insights, Lessons and Approaches

Colin B. Picker, University of New South Wales (UNSW) - Faculty of Law


"Norms of Equality Implicit in Capitalism" Free Download
Supreme Court Economic Review, Forthcoming

ROBERT T. MILLER, University of Iowa College of Law, New York University - School of Law, Classical Liberal Institute

In contrast to most discussions about capitalism and equality, which concern how well capitalist societies conform to some notion of equality justified on grounds unrelated to capitalism, this paper inquires into what norms of equality are implicit in capitalism itself, which I take to be a legal system of strong property rights, broad freedom of contract, and minimal economic regulation. I argue that capitalism includes two separate norms of equality. The first is implicit in the legal rules defining capitalism because these rules create enforceable legal rights without regard to the parties’ social status, class, race, and similar factors. Often derided as merely formal, this norm of equality is in fact of tremendous practical importance, a fact that appears clearly when we consider economic systems in which this norm is not observed. The second norm of equality implicit in capitalism is much stronger. To show the existence of this norm, I argue that, beyond its defining legal rules, capitalism implicitly contains a norm of welfare maximization justifying these rules. Interpreting this norm in accordance with the Kaldor-Hicks (KH) concept of efficiency, I argue that, although KH-justifications can favor the rich over the poor and thus embed an obvious form of inequality, nevertheless because of certain special properties of the legal rules defining capitalism, when KH-justifications are limited to such rules, the justifications do not favor any economic group over any other. As a result, capitalism, now considered as a certain set of legal rules along with a KH-justification for such rules, gives equal consideration and respect to all persons and so embeds a strong norm of equality.

"Human Dignity and the Rule of Law" Free Download
Utrecht Law Review, Vol. 11, No. 2, p. 91-105, June 2015

STEPHEN RILEY, University of Utrecht

The rule of law denotes an expectation of non-arbitrary governance. It also invokes law’s distinctive characteristics: formality, institutional independence, and authority. Taken together with a basic conception of the person, the rule of law can be treated as ‘good governance consistent with human rationality or agency’ and is often associated with human dignity. On the view defended here, human dignity in conjunction with the rule of law makes additional, specific, demands on legal systems, namely the reconciliation of the ‘normative holism’ of law (its regulatory reach) with permissive, ‘anthropological’, demands. This line of enquiry provides us with both a distinctive understanding of human dignity and an understanding of law that is normative but still closely related to the formal virtues implied by the rule of law.

"Contentious Modes of Understanding Chinese Commercial Law" Free Download
The George Mason Journal of International Commercial Law, 2015 Forthcoming

TIANSHU ZHOU, China University of Political Science and Law
MATHIAS M. SIEMS, Durham University - Durham Law School, University of Cambridge - Centre for Business Research

Is Chinese commercial law simply a copy of German and other Western commercial laws, a “mystery? that Westerns cannot understand, or an “irrelevance? given the role of culture and politics in China? This article critically discusses these three modes of understanding. It is found that, while they seem to have some initial plausibility, one also has to be aware of their shortcomings. Thus, in the understanding of Chinese commercial law, it is most appropriate to take into account all three modes, as well as their limitations. This article also suggests approaching this topic as a “bilateral process? since the understanding of Chinese law also depends on the way Chinese law-makers understand Western legal systems.

"Comparative Legal Cultural Analyses of International Economic Law: Insights, Lessons and Approaches" 
6 Indian J. Int’l Econ. L. 54-83 (2014)

COLIN B. PICKER, University of New South Wales (UNSW) - Faculty of Law

The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across different legal cultures. That conflictual interaction can impede or block the successful implementation and development of the law. While present in domestic legal systems, those conflicts are more likely and deeper between the many different legal cultures involved in the international legal order. This article aggregates and analyses the results from a series of related case studies applying a comparative legal cultural analysis to various aspects of international economic law. When brought together, for the first time, it is clear that the methodology can be usefully applied to the international legal order, and specifically to international economic law. Furthermore, the various findings provide deep insights into the inner workings of IEL as a whole, as well as of the individual areas examined. In addition, the case studies successful employment of comparative legal cultural analysis revealed hitherto hidden insights into legal culture as well as into the methodology itself.


About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago


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Advisory Board

Law, Norms & Informal Order eJournal

Wilson-Dickinson Professor of Law, University of Chicago Law School

Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Walter E. Meyer Professor of Property and Urban Law, Yale Law School

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

Dean, University of Virginia School of Law

L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

Kirkland and Ellis Professor of Law, University of Chicago - Law School

Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

Ford Foundation Professor of Comparative and Foreign Law, Yale Law School