Functional Background - Legitimacy Requirements
5 important questions on Functional Background - Legitimacy Requirements
What justifies the strict political burden of argumentation surrounding a legislative or judicial decision of interfering with private parties' decisions?
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Parties know better about their own affairs than the legislature.
- Deviation from parties' agreement/intentions triggers specific costs (litigation due to legal uncertainty or exceeding effects, pursuit for alternatives to the forbidden ctt).
- Ethical superiority of incentive-based justice over distributive justice.
On what does the legitimacy of the regulatory interference depends?
On the nature of the purpose pursued.
What justifies an intervention for supra-individual purposes?
Its social value.
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What justifies an intervention related to the protection of reliance in legal transactions?
The positive effect on commerce.
What are the concerns related to social protection?
- Why must an individual party bear the burden of social protection rather than the general public (ie thru general taxation) - problem of arbitrariness.
- Burden triggers costs, which may be transferred by the individual party bearing them through the market to the general public that should have been protected (increase of prices, salary reduction etc).
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