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Title: A theory of configurative fairness for evolving international legal orders : linking the scientific study of value subjectivity to jurisprudential thought
Author: Behn, Daniel
ISNI:       0000 0004 2742 5244
Awarding Body: University of Dundee
Current Institution: University of Dundee
Date of Award: 2013
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Values matter in both legal decision (lawmaking and lawapplying) and discourse (lawshaping and lawinfluencing). Yet, their purported subjectivity means that gaining or improving knowledge about values (whether they be epistemic, legal, moral, ethical, economic, political, cultural, social, or religious) in the context of analytic legal thought and understanding is often said to be at odds with its goal of objectivity. This phenomenon is amplified at the international level where the infusion of seemingly subjective political values by sovereigns, and the decisionmakers to whom they delegate, can, and does, interfere with an idealized and objective rule of law. The discourse on value subjectivity, and its relation to the purpose and function of the law, is particularly apparent in evolving international legal orders such as investment treaty arbitration. The primary aim of this work is to provide a new method for gaining empirical knowledge about value subjectivity that can help close a weak link in all nonpositivist (value-laden) legal theory: a weakness that has manifest itself as skepticism about the possibility of measuring value objectively enough to permit its incorporation as a necessary component of analytic jurisprudence. This work proposes a theory of configurative fairness for addressing the problem related to the development or evolution of legal regimes, and how legal regimes perceived as subjectively unfair can be remedied. Such a theory accepts the premise that perceptions of fairness matter in directing the way that legal orders develop, and that perceptions of fairness relate to the manner in which values are distributed and maximized in particular legal orders. It is posited that legal orders perceived as fair by their participants are more likely to be endorsed or accepted as legally binding (and are therefore more likely to comply with the processes and outcomes that such laws mandate). The purpose of a theory of configurative fairness is an attempt to provide a methodological bridge for improving knowledge about value in the context of legal inquiry through the employment of a technique called Q methodology: an epistemological and empirical means for the measurement and mapping of human subjectivity. It is a method that was developed in the early twentieth century by physicist-psychologist William Stephenson: the last research student of the inventor of factor analysis, Charles Spearman. What Stephenson did was to create a way for systematically measuring subjective perspectives, and although not previously used in jurisprudential thought, Q methodology will facilitate a means for the description and evaluation of shared subjectivities. In the context of law generally, and in investment treaty arbitration specifically, these are the subjectivities that manifest themselves as the conflicting perspectives about value that are omnipresent in both communicative lawshaping discourse and authoritative and controlling lawmaking and lawapplying decision. Knowledge about these shared value subjectivities among participants in investment treaty arbitration will allow the legal analyst to delineate and clarify points of overlapping consensus about the desired distribution of value as they relate to the regime-building issues of evolving legal orders. The focus for a theory of configurative fairness pertains to the identification of the various value positions that participants hold about a particular legal order and to configure those values, through its rules and principles, in a manner that is acceptable (and perceived as fair) by all of its participants. If such a value consensus can be identified, then particular rules in the legal order can be configured by decisionmakers in a way so as to satisfy participants’ shared value understandings. To engage such a theory, a means for identifying shared value subjectivities must be delineated. This work conducts a Q method study on the issues under debate relating to regime-building questions in investment treaty arbitration. The Q method study asked participants knowledgeable about investment treaty arbitration to rank-order a set of statements about the way that the values embraced by this legal order ought to be configured. The results of the study demonstrate that there is significant overlap about how participants in investment treaty arbitration perceive the desired distribution of values across the regime. The Q method study identified six distinct perspectives that represent shared subjectivities about value in the context of the development of investment treaty arbitration. The Q method study was also able to identify where there is an overlapping consensus about value distribution across the distinct perspectives. It is these areas of overlapping consensus that are most likely to reflect shared value understandings, and it is proposed that it is upon these shared value understandings that the future development of investment treaty arbitration ought to aim.
Supervisor: Cameron, Peter Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: 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