I am happy to annouce the upcoming international publication of Ethics and Business, a global introduction by Roudlegde publishers (27 May 2021). The English version of ‘ethiek en economie’ was published by Noordhoff in the Netherlands in 2018. Now, also elsewhere in the world this handbook on ethics and business will be distributed. For more info, please visit: Ethics and Business | Taylor & Francis Group.
With great enthusiasm I share this publication for Technology in Society (Elsevier). I propose a roadmap to support the ethical decision making process in moral programming of smart technology. In this contribution I discuss when we have a moral programming issue, who ought to decide on this, what can be decided, and how moral decisions can be programmed in technology. The main goal is to contribute to a smart society that is more human, with respect for individual morality.
Abstract: Smart technology is increasingly integrated in our ethical decision making. This raises questions as to how we should morally program technology. Deciding on moral programming depends on the moral intensity of the ethical issue. A moral intensity dashboard for engineers can help allocate the most suitable moral authority for a particular moral programming. Technology is not capable of ‘doing’ ethics the way humans do. This leaves forms of consequentialism and deontology as the most reasonable programming alternatives, using deontic logic as a starting point. Furthermore, it is very likely that in the more complicated settings, technology should have elements of meta ethics in its moral programming to adequately deal with scenarios that lead to conflicts in moral programming. We propose to use the calculation methods that stem from a comparative approach or the Expected Moral Value approach. All this has considerable consequences in how we should see moral programming in technology-driven ethical decision-making processes. We will therefore propose a roadmap for the moral programming of smart technology.
Keywords: Moral programming, Ethical decision making, Moral Intensity, Smart technology, Normative ethics, Meta ethics
I am more than thrilled to announce the publication of the new edition of EU Food Law Handbook. It was an honour to be on the editorial board with my friend Bernd Van der Meulen and in that role work together with around twenty EU food law experts. Once again, Wageningen Academic Publishers did an excellent job in realizing the publication of an 800 page academic work in less than three months (!). Amongst others, Anna Szajkowska, Jens Karsten, Daniela Corona, Rozita Spirovska Vaskoska, Martin Holle, Irene Verheijen, Alexandra Eftimie, Dionne Chan, Antonia Corini, Ph.D., Karola Krell Zbinden, Bernard Maister, Valeria Paganizza and Bram de Jonge wrote an excellent contribution, in which they reflect on food law related issues in their field of expertise.
Taking the General Food Law as a focal point, this handbook systematically analyses and explains the institutional, substantive and procedural elements of EU food law. Principles are discussed as well as specific rules addressing food as a product, the processes related to food and communication about food to consumers through labelling. These rules define requirements on subjects like market authorisation for food additives, novel foods and genetically modified foods, chemical and biological contaminants in food, food hygiene, tracking & tracing, withdrawal & recall, food labelling and claims. The powers of public authorities to enforce food law and to deal with incidents are outlined. Attention is given to the international context (WTO, Codex Alimentarius) as well as to private standards.
In addition to the systematic analysis, the book includes selected topics such as nutrition and health policy, special foods, food import requirements, food contact materials, intellectual property, private food law, and animal feed. In this new edition, existing chapters have been updated to take account of many important developments in legislation and case law. Several new topics have been added to the analysis such as the right to food, organics and food fraud.
An interview in Dutch about this publication can be found here.
The publication of this edition is quite special to me. The first ever edition of this book was published in 2004, when I was a student-assistant at Wageningen University. On my first day I was invited to the book launch. During this ceremony, I realized I wanted to become an author as well, and somehow I managed to become one. Therfore, being a member of the editorial board in 2020 is particularly special to me. The seed that pas planted in 2004 has led to an interesting harvest!
Good faith in Canada…
Why is this ruling so important?
In this ground-breaking ruling, the Canadian Supreme Court affirmed the existence of the principle of good faith in contract law. This is a wonderful example of the application of ius cogens, or general principles of law. Since the Supreme Court of Canada had ruled that lower courts may not overrule decisions of higher courts (the so called Stare Decisis doctrine), and the Supreme Court is the highest Canadian court, the principle of good faith in contract law applies fully in all Canadian States.
Two competing sales agents (Bhasin and Hrynew) sell education saving plans for Can-Am. This latter company allows sales agents to sell their investment products under a dealer agreement. This dealer agreement automatically renews every three years, unless a notice of termination was given at least six months before the end of a period. It is no secret that Bhasin and Hrynew do not like each other. Hrynew wants to take over the nice market of Bhasin, and proposes a merger. Not surprisingly, Bhasin rejects the proposal. Can-Am, who will probably benefit from this merger, appoints Hrynew as auditor to review the dealer agreements. This leads to the situation that Hrynew has a biased function (audotor and competitor). As a result,. Bhasin does not want to be transparent regarding the details of his business. This is a reason for Can-Am to terminate the contract, leaving Bhasin on the edge of bankruptcy.
What was decided?
The Supreme Court ruled that a dealer agreement should be understood and used in good faith. The termination clause was abused, since Bhasin could never leave up to the expectaction that he would reveal all his business secrets to his most important competitor (this time acting in his capacity as auditor). After all, that would reduce the value of his business to almost zero.
Important quotes from the verdict
‘I have concluded that Can-Am’s breach of contract consisted of its failure to be honest with Mr. Bhasin about its contractual performance and, in particular, with respect to its settled intentions with respect to renewal. It is therefore liable for damages calculated on the basis of what Mr. Bhasin’s economic position would have been had Can-Am fulfilled that duty. While the trial judge did not assess damages on that basis given her different findings in relation to liability, she made findings that permit this Court to do so.’
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The Court based its findings on an impressive survey of legal literature and case law in various common law countries. The basis for the verdict is not a codified standard, but a general principle of law.
I did some writing about the corona crisis, discussing mainly ethical, legal and (perhaps) historical perspectives of this crisis. It is mainly in Dutch. Here is an overview:
- Wernaart, B. (2020, 3 July). Collectieve zelfvernietiging. Het rechtenstudentje.
- Van Dijk, M. (2020, 17 June). Gelijkheid tijdens Corona: ‘Je kunt altijd dingen wel verzinnen die anders zijn voor jou‘. Eindhovens Dagblad en Algemeen Dagblad.
- Wernaart, B. (2020, 11 June). Iedereen is ongelijk, maar laten we elkaar wat gunnen. Eindhovens Dagblad.
- Wernaart, B. (2020, 3 June). Corona, de tijd van je lever. Het rechtenstudentje.
- Wernaart, B. (2020, 27 May). In pandemie zoeken we ook naar exit filosofie. Eindhovens Dagblad.
- Wernaart, B, (2020, 17 March). De Corona-kriebels: weg met Suzan en Freek-maatregelen. Het rechtenstudentje.
- Wernaart, B. (2020, 17 March). Uit het leven van een rechtendocent: lesgeven vanuit je mancave. Het rechtenstudentje.
I am more than thrilled to announce the publication of the second edition of ‘Ethiek en economie, een grensoverschrijdende inleiding’ at Noordhoff Publishers. The initial version of 2015 had an English follow up in 2018. Now, the Dutch book is completely revised and updated (2020). The book consists of three parts:
1) ethics and the individual: focussing on morality, responsibility, normative ethics, and moral decision making-processes;
2) ethics and the business: focussing on the triple bottom line and accountability (integrated reporting);
3) ethics and the world: focussing on cultural diversity and globalization.
In all chapters, practical examples can be found that are business oriented. There is also a website with addiotional course materials and weblectures. For more info, click here.
Why is this ruling so important?
In this ground-breaking ruling, the European Court of Justice held that European Law is of a higher legal order than National Law. In case of contrary national legislation, the European rules therefore prevail.
In the early sixties, the Italian government nationalized the electricity sector. Mister Flaminio Costa disagreed with this course of affairs, because he owned shares in a small private electricity company that was now being merged into a state owned company: ENEL. As reprisal, he refused to pay his electricity bills, with a total sum of almost 2000 Lire. In the Italian court, he argued that the nationalization was against European Law. The Italian government however, held that under no conditions, a domestic court could set aside national law.
What was decided?
The European Court of Justice ruled that in this case the nationalisation of the electricity sector was a matter the European Commission should deal with, since the commission was competent to review such acts against European Law.
Please note that In casu, mister Costa did not win the argument. However, the court was very clear on one thing: the Italian government was wrong in assuming that no domestic court could set aside domestic law.
Important quotes from the verdict
The obligations undertaken under the treaty establishing the community would not be unconditional, mut merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Ttreaty grants the states the rights unilaterally, it does this by clear and precise provisions.
It follows from all these observations that the law stemming from the treaty, and independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.
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Art. 288 TFEU (ex Art. .249 TEC, in the original ruling a reference is made to the earlier Art. 189 of the EEC treaty).
A short introduction in the preasumptio similtudinis, tertium comparationis and functional equivalence
Brussels 1 and Rome 1 briefly explained in a three step approach (EU Regulation 1215/2012 and 593/2008).
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This week we saw the emergence of a major diplomatic conflict between Turkey and the Netherlands. In short, the Dutch government used legal means to ban two Turkish ministers from Dutch territory, preventing them to hold speeches in support of the Erdogan campaign. This campaign is about a referendum that would change the Turkish Constitution, putting –bluntly said- more power in the hands of the Turkish President.
In the media, we see an explosion of articles that are about the ‘lawfulness’ of the Dutch actions and Turkish ministers. However, what I miss in the ‘mainstream’ debate is a very important underling question: ‘can you use democratic means to realize undemocratic results?’ Or, from the opposite perspective: ‘can you use undemocratic means to protect democracy?’