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

  • Daniel Behn

    Student thesis: Doctoral ThesisDoctor of Philosophy


    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.
    Date of Award2013
    Original languageEnglish
    SupervisorPeter Cameron (Supervisor) & Melaku Desta (Supervisor)


    • 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

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