A theory of configurative fairness for evolving International legal orders

: linking the scientific study of value subjectivity to Jurisprudential thought

Abstract

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 Award	2013
Original language	English
Supervisor	Peter Cameron (Supervisor) & Melaku Desta (Supervisor)