A theory of configurative fairness for evolving International legal orders: linking the scientific study of value subjectivity to Jurisprudential thought

Values matter in both legal decision (lawmaking and lawapplying) and<br/>discourse (lawshaping and lawinfluencing). Yet, their purported subjectivity<br/>means that gaining or improving knowledge about values (whether they be<br/>epistemic, legal, moral, ethical, economic, political, cultural, social, or<br/>religious) in the context of analytic legal thought and understanding is often<br/>said to be at odds with its goal of objectivity. This phenomenon is amplified at<br/>the international level where the infusion of seemingly subjective political<br/>values by sovereigns, and the decisionmakers to whom they delegate, can, and<br/>does, interfere with an idealized and objective rule of law. The discourse on<br/>value subjectivity, and its relation to the purpose and function of the law, is<br/>particularly apparent in evolving international legal orders such as investment<br/>treaty arbitration.<br/><br/>The primary aim of this work is to provide a new method for gaining empirical<br/>knowledge about value subjectivity that can help close a weak link in all<br/>nonpositivist (value-laden) legal theory: a weakness that has manifest itself as<br/>skepticism about the possibility of measuring value objectively enough to<br/>permit its incorporation as a necessary component of analytic jurisprudence.<br/>This work proposes a theory of configurative fairness for addressing the<br/>problem related to the development or evolution of legal regimes, and how legal<br/>regimes perceived as subjectively unfair can be remedied. Such a theory<br/>accepts the premise that perceptions of fairness matter in directing the way<br/>that legal orders develop, and that perceptions of fairness relate to the manner<br/>in which values are distributed and maximized in particular legal orders. It is<br/>posited that legal orders perceived as fair by their participants are more likely<br/>to be endorsed or accepted as legally binding (and are therefore more likely to<br/>comply with the processes and outcomes that such laws mandate).<br/><br/>The purpose of a theory of configurative fairness is an attempt to provide a<br/>methodological bridge for improving knowledge about value in the context of<br/>legal inquiry through the employment of a technique called Q methodology: an<br/>epistemological and empirical means for the measurement and mapping of<br/>human subjectivity. It is a method that was developed in the early twentieth<br/>century by physicist-psychologist William Stephenson: the last research<br/>student of the inventor of factor analysis, Charles Spearman. What<br/>Stephenson did was to create a way for systematically measuring subjective<br/>perspectives, and although not previously used in jurisprudential thought, Q<br/>methodology will facilitate a means for the description and evaluation of<br/>shared subjectivities. In the context of law generally, and in investment treaty<br/>arbitration specifically, these are the subjectivities that manifest themselves as<br/>the conflicting perspectives about value that are omnipresent in both<br/>communicative lawshaping discourse and authoritative and controlling<br/>lawmaking and lawapplying decision. Knowledge about these shared value<br/>subjectivities among participants in investment treaty arbitration will allow the<br/>legal analyst to delineate and clarify points of overlapping consensus about the<br/>desired distribution of value as they relate to the regime-building issues of<br/>evolving legal orders.<br/><br/>The focus for a theory of configurative fairness pertains to the identification of<br/>the various value positions that participants hold about a particular legal<br/>order and to configure those values, through its rules and principles, in a<br/>manner that is acceptable (and perceived as fair) by all of its participants. If<br/>such a value consensus can be identified, then particular rules in the legal<br/>order can be configured by decisionmakers in a way so as to satisfy<br/>participants’ shared value understandings. To engage such a theory, a means<br/>for identifying shared value subjectivities must be delineated. This work<br/>conducts a Q method study on the issues under debate relating to regime-building questions in investment treaty arbitration.<br/><br/>The Q method study asked participants knowledgeable about investment<br/>treaty arbitration to rank-order a set of statements about the way that the<br/>values embraced by this legal order ought to be configured. The results of the<br/>study demonstrate that there is significant overlap about how participants in<br/>investment treaty arbitration perceive the desired distribution of values across<br/>the regime. The Q method study identified six distinct perspectives that<br/>represent shared subjectivities about value in the context of the development<br/>of investment treaty arbitration. The Q method study was also able to identify<br/>where there is an overlapping consensus about value distribution across the<br/>distinct perspectives. It is these areas of overlapping consensus that are most<br/>likely to reflect shared value understandings, and it is proposed that it is upon<br/>these shared value understandings that the future development of investment<br/>treaty arbitration ought to aim.

Name dc:type.qualificationname

Doctor of Philosophy

Level dc:type.qualificationlevel

Doctoral Thesis

Grantor dc:publisher.institution

University of Dundee

Year dc:date.issued

2013

Author dc:creator

• Behn, Daniel

Advisor dc:contributor.advisor

• Cameron, Peter

• Legal theory
• Jurisprudence
• Values
• International law
• Investment treaty arbitration
• Q-methodology
• Subjectivity
• New Haven School
• Legal development
• Legal decision making
• Fairness
• Justice
• Legal philosophy
• International dispute settlement

Language dc:language

eng

Identifier

oai:discovery.dundee.ac.uk:studenttheses/76f73f77-b861-4afd-8396-75e2c957705e

OAI identifier oai:identifier

oai:discovery.dundee.ac.uk:studenttheses/76f73f77-b861-4afd-8396-75e2c957705e