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This introductory chapter outlines the features of the new approach to CG that can be built by integrating the insights from the different contributions gathered in the book. Further specific theses advanced in this chapter are that the ‘shareholder view’ and the unabashed recommendation of pay for performance misapply agency and property right theories themselves; that CG design should be grounded in an empirically-based appreciation of preferences and motivation; that the portfolio of governance mechanisms should be enlarged to include organizational mechanisms such as negotiation, social control, and community governance; and that, contrary to common wisdom, an economic and organizational efficiency view of CG should lead to differentiated rather than homogeneous solutions, while institutional isomorphism and legitimacy may lead to inefficient convergence.

This chapter focuses on the intersection between the two fundamental pillars under investigation: the social contract and the welfare state. The social contract provides the normative platform for conditionality as it is expressed with respect to the relationship between the individual and the state. In addition, social contract paradigm has jurisprudential implications, that concern the conceptualization of rights and the legitimacy of placing conditions upon them. This new construction has the potential to make a significant impact on the value ascribed to rights in society. The critiques that the choice and interest theories of rights have levelled against each other are helpful in introducing this point. The fear is that rights will be seen to reflect no more than the aggregate of interests in a particular context, leaving them conceptually redundant.

This chapter proposes a stipulative definition of fundamental legal rights that attempts to single out the most important features of those rights, which are discussed under four headings: the point, the structure, the content and the functions of rights. Mainstream theories of rights, such as the interest theory and the will theories are criticised and a status theory of fundamental legal rights is offered instead. More precisely, the chapter develops a theory that treats fundamental legal rights differently from ordinary legal and moral rights. Such a theory is centred on the idea of immunity given by fundamental legal rights which corresponds to the idea of disability on the part of the legislative power. In particular, fundamental legal rights give individuals a status of inviolability.

This chapter applies a ‘comparative institutional analysis’ approach to CG. It criticizes the property right approach for being a special case, and develops a more general model of governance with shifting allocations of property rights to different internal and external actors, contingent to the overall economic performance of the firm. This contingent relational governance solution is deemed to be complementary with an uncontingently horizontal organization, at least in innovative activities. The Silicon Valley model is discussed as supportive evidence of this mode of CG.

This chapter describes how the internalization theories discussed in the previous chapters can be taken to the data. The empirical literature on this topic is still budding and has yet to provide fully convincing empirical tests of these models. Several well-crafted papers have offered different pieces of evidence that are consistent with one or more of those models, but the power of such tests remains fairly low, as the chapter explains. The goal of this chapter is thus not only to overview and replicate past work, but to try to highlight some of its limitations and suggest avenues for future research in this area.

This chapter looks at the work of John Rawls and Ronald Dworkin with a view to explain the idea that states can justifiably interfere with ECHR rights under the relevant limitation clauses of articles 8-11 ECHR. Particular emphasis is placed on the distinction between reason-blocking and interest-based theories of rights. It is argued that the ECHR does not create abstract entitlements that certain individual interests be protected up to a certain degree. It is misleading to think of justiciable human rights as rights to particular interests. Rather, we have rights not to be deprived of some liberty or opportunity on the basis of certain impermissible considerations. Rights thus understood are absolute and subject to no ‘balancing’ exercise: it can never become justified for the government to restrict someone's liberty on the impermissible considerations that rights rule out.

This chapter shows that some of the Confucian ideas, though apparently in conflict with some of the “democratic ideas” or ideas considered essential to rights, can be made compatible with rights. But clearly, Confucians have a more ambitious agenda. Given the Confucian continuum and harmony model between the private and the public, they also reject the mainstream liberal idea that the state should remain value-neutral, and stay out of the realm of the private. Instead, the state has a duty to promote virtues, including some of those that are considered to be in the realm of the private. For a liberal democracy to function well, the promotion of some virtues is necessary. That is, the virtues a liberal state needs to and should promote have to be “thicker” than what the liberal value neutrality or even a later Rawlsian would endorse.

This chapter focuses on one analytical conception of rights, called “The Interest Theory of Rights”. It presents two interesting conclusions that follow from it concerning the appropriate limits of rights: namely, that rights, properly conceived, are both inherently limited and inherently, or unavoidably, controversial. Though these two conclusions seem to pull in different directions, it is shown that they teach us the same political lesson, namely, that there is something both misleading and unattainable in the aspiration to political neutrality.

This chapter turns to the property-rights theory of the firm, which arguably constitutes the most compelling and influential theory of the firm explaining in a unified framework both the benefits as well as the costs of vertical integration. The central idea of the property-rights approach is that internalization matters because ownership of non-human assets is a source of power when contracts are incomplete. More specifically, when parties encounter contingencies that were not foreseen in an initial contract, the owner of these assets naturally holds residual rights of control, and they can decide on the use of these assets that maximizes payoff at the possible expense of that of the integrated party.

The argument in this chapter addresses the issue of why rights should be justified, and what the processes of such justification are. The first section of this chapter addresses this particular issue and suggests that there are certain sorts of rights that need to be justified by reference to core moral rights, so that they can command a measure of acceptability. The second part of the chapter maps the three different ways in which the right of secession has been justified by political philosophers. The third section suggests that the ‘remedial right only’ theory or the just cause theory proves appropriate for contested secessions. Still, we have to take on board dilemmas and moral considerations that might not find place on the agenda of liberal political philosophers based in the West and theorizing for the West. The right of secession appears then much weaker.

This chapter discusses answers to the normative question: what justification, if any, exists for contract law? Most answers fall into two main categories: utilitarian theories of contract and rights-based theories of contract. It argues that while both efficiency-based utilitarian theories and rights-based theories offer prima facie plausible justificatory accounts of contract law, neither category offers a perfect justification.

This chapter considers whether, and under what circumstances, above-desert penalties can be justified under two nonconsequentialist theories: a Rawlsian account of what kinds of penalties would be authorized by contractors in the original position; and a competing-rights theory under which the right of potential crime victims to be protected from foreseeable harm may outweigh the right of an offender not to be punished in excess of his deserts. The Rawlsian model provides at most only limited support for above-desert punishment, and may be too indeterminate to provide a workable and convincing approach to this problem. The competing-rights theory, while perhaps more workable, is problematic; the weighing of victim and off ender rights is difficult, since the interests underlying these rights are often incommensurable, and which way the balance tips may depend on whether the rights of multiple potential victims may be aggregated. It has been argued that the logic of both the Rawlsian and the competing-rights theory implies several limiting principles normally associated with utilitarian theory: above-desert penalties, if allowed at all, must be shown to be effective in reducing future victimization, necessary (in the sense that a lesser penalty would be less effective), and proportionate to the harm of the future crimes avoided. These principles, if rigorously applied, would minimize the use of above-desert penalties. However, there is reason to fear that they would not be so applied, particularly under the victims' rights theory, given the strong political appeal of such a theory.

This chapter surveys institutional and organizational theories that are used for studying the statics and dynamics of the development of institutions in interaction with their environment. It outlines the theoretical frameworks on the development of institutions and particularly of trade organizations. The chapter also discusses theories that are useful for static analysis. It examines theories that can be deployed for the dynamic development of institutions within their environment and assert that the theoretical framework for the study of institutional migration is lacking. The chapter talks about the proliferation of academic research activity over the last half a century in areas including transaction-cost economics, theories of the firm, property-rights theories, and contract and agency theory.

Immoral, conflicting, and redundant promises raise important but neglected issues for any theory of promising. The paper investigates what resources expectation theories of promising, such as Scanlon’s, have to deal with these under-explored problem cases. It contrasts them with the resources available to rights-transfer theories of promising, offering a welcome occasion for the refinement and clearer articulation of rights-transfer theories. The paper acknowledges that these cases appear to pose special challenges for rights-transfer theories, but ones, I contend, that it can meet. Although at first blush, Scanlon’s theory seems to handle these cases more straightforwardly than rights-transfer theories, Scanlon’s theory may oversimplify what is, in fact, rugged moral terrain.

For what reason and to what extent should the retrieval of organs from people's dead bodies be governed by what they wanted while alive? This chapter argues that the idea of personal sovereignty described in chapter 2 includes a right to control what happens to one's body after death. This chapter elaborates and qualifies posthumous personal sovereignty. It then contrasts personal sovereignty with other attempts to justify posthumous rights, via bodily integrity, religious freedom, honouring bequests, and respecting the sensibilities of the living. The chapter rejects several objections. One is that a posthumous wish involves caring earlier about a later event, which matters no more than caring later about an earlier event. Another relies on a choice theory of right, and says that, as the dead cannot waive rights, they cannot have rights. The third claims that people cannot have posthumous rights because they do not suffer physical harm or bad experiences after death.

An accurate understanding of the proportionality assessment in international human rights law requires recognition of the impact of factors for a margin of appreciation alongside in the decision-making process of the court. This chapter considers the origins of proportionality in human rights law, and different theories of rights (interest theories and “rights as trumps” theories) that have sought to explain how it operates. It argues that these accounts of proportionality are deficient in so far as they omit an explanation of the role of deference in courts' reasoning. It further argues that use of the word “balancing” to describe proportionality is inaccurate if taken literally, but can be a helpful metaphor. The chapter expounds case law that demonstrates the conceptual connection between the margin of appreciation and proportionality in practice.

This chapter defines what William Cobbett means by ‘the right of rights’. It asks what sort of right this is and how it can be justified. How important, the chapter asks, is it in relation to other rights? The chapter argues that the special role of participation in a theory of rights is not a matter of its having moral priority over other rights. Instead it is the upshot of the fact that participation is a right whose exercise seems peculiarly appropriate in situations where reasonable right-bearers disagree about what rights they have.

This chapter offers a different way to understand and analyze the concept of property. It argues that property is a complex package of normative choices that is not fully or adequately illuminated by any of the conventional understandings of property that have been offered. Those understandings — which focus on the theories of rights that property may involve — identify and describe one dimension of common legal conceptions of property. However, property is considerably more complex. Selection of a theory of rights is necessary for any legally cognizable conception of property; in addition to this, we must choose content for the dimensions of space, stringency, and time. It is only through specification of all these dimensions and the questions they raise that we can illuminate all of the choices that property — as used in law — in fact involves.