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Who should get what when governments change the rules? A normative theory of legal transitions

Green, Fergus (2019) Who should get what when governments change the rules? A normative theory of legal transitions. PhD thesis, The London School of Economics and Political Science (LSE).

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Abstract

To advance important social values it is often necessary to change the law. Yet changes in the law create not only ‘winners’, but also ‘losers’. Paradigmatic examples are workers and corporations in the coal industry that are adversely affected by climate change laws. Should governments take steps to avoid or mitigate transitional losses and gains? If so, for whom and under what conditions, and why? This is the normative ‘problem of legal transitions’, the subject of this thesis. Various theories to resolve the problem have been proposed by scholars in the normative branches of political, legal and economic theory. The first part of this thesis critically evaluates the four dominant families of theories: property theories (in the classical liberal and libertarian tradition); efficiency theories (in the ‘law and economics’ tradition); legitimate expectations theories; and justice theories (the last two in the liberal-egalitarian tradition). The ‘wide reflective equilibrium’ method is employed to evaluate both the implications of each theory in concrete cases and the antecedent (e.g. ontological) commitments in which it is grounded. The existing theories—which tend to entail state responses that are either extremely conservative (e.g. full grandfathering or compensation) or purely reformative (let all losses and gains lie where they fall)—are found wanting. The second part of the thesis specifies and defends a new theory—Adaptive Responsibility Theory—which forges a principled middle path. The appropriate state response is shown to be a function of two kinds of reasons: wellbeing reasons and fairness reasons. Crucially, these reasons have both a direction (conservative vs reformative) and a magnitude/weight. This opens up the wide middle ground between the extremes, justifying a central role for adaptive transition policies, the aim of which is to ensure that people have the time and adaptive capabilities needed to adapt successfully to new conditions.

Item Type: Thesis (PhD)
Additional Information: © 2019 Fergus Green
Library of Congress subject classification: J Political Science > JA Political science (General)
K Law > K Law (General)
Sets: Departments > Government
Supervisor: Spiekermann, Kai
URI: http://etheses.lse.ac.uk/id/eprint/3980

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