A Philosophical Perspective on the Regulation of Business

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A Philosophical Perspective on the Regulation of Business

ABSTRACT: The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom,
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(2) The Anglo-American theory (as opposed to its philosophical foundation) of political democracy requires such a presumption about persons (i.e., citizens), who would otherwise be neither capable, nor worthy, of self-rule. This presumption of reasonableness correlates directly with the presumption of innocence in the Anglo-American concept of the rule of law. (3)

As a function of this understanding, when universalized in civil society, legal authority in the Anglo-American tradition is grounded in the rule of law, rather than in those who happen to claim or administer legal authority, and as such (focusing here only on criminal justice, since it is the starkest aspect of law), is 1) required to presume a person's innocence until s/he is found guilty by a jury of peers, with the burden of proof resting resolutely with the accuser (i.e., the state); 2) is rigidly restricted to judging actions, rather than persons, and 3) must hold perpetrators of unlawful actions to the same penal standard, regardless of who they might be, or what position they might hold in society. (4) The moral purpose of punishment with respect to the criminal is retribution (the deed is expiated through execution of the punishment), while the moral purpose of punishment with respect to society is that it confirms our collective commitment to the rule of law — even while deterrence is seen as a primary objective (i.e., as an amoral "goal"). (5)

For most of Europe, the continental model of
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