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The Function of Several Property and Freedom of Contract*


Suppose you are on a commercial airplane that is flying at 35,000 feet. Next to you sits a man who appears to be sleeping. In fact, this man has been drugged and put upon the plane without his knowledge or consent. He has never flown on a plane before and, indeed, has no idea what an airplane is. Suddenly the man awakes and looks around him. Terrified by the alien environment in which he finds himself, he searches for a door or window from which to make an escape. As luck would have it, he is seated right next to a window exit and he begins to pull the handle that will open the window. You are aware that opening the window exit at this altitude will cause the cabin to quickly depressurize and that this man, you, and probably several other passengers will be sucked out the window to your deaths. You desperately want to stop him from opening the window. Now assume that for some reason it is impossible to prevent him physically from performing the deadly act. Your only option is to rationally persuade him to leave the window exit alone. You cry out to him and, with both hands on the handles, he turns to face you and waits to hear what you have to say. What sort of argument would you make?

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Lon L. Fuller , “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review, vol. 71 (1958), p. 644.

Randy E. Barnett , “Contract Scholarship and the Reemergence of Legal Philosophy,” Harvard Law Review, vol. 97 (1984), pp. 1223–45

Randy E. Barnett , “Rights and Remedies in a Consent Theory of Contract,” eds. R. G. Frey and Christopher Morris , Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991), pp. 135–72.

Randy E. Barnett , “Restitution: A New Paradigm of Criminal Justice,” Ethics, vol. 87 (1977), pp. 279301

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
  • URL: /core/journals/social-philosophy-and-policy
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