Social Justice in the Modern Regulatory State: Duress, Necessity and the Consensual Model in Law
Law and Philosophy, Vol. 6, pp. 205-225, 1987
21 Pages Posted: 4 Dec 2009 Last revised: 14 Nov 2013
Date Written: 1987
Abstract
This paper examines the role of "consent" in law and argues that if substantive justice is to be the goal of law, the use of individual "choice" as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being.
Keywords: Choice, Necessity, Duress, Consensual Model, Consent, Social Responsibility, Substantive Justice, Distributive Justice, Retributive Justice, Institutional Design, Human Rights, Justification, Excuse, Regulation
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