DANIEL BEHN PETER CAMERON<br />JUNE 2011 MELAKU DESTA<br />On the SHARED Subjectivity of VALUE CLAIMS in Legal Discourse: THE APPLICATION OF Q METHOD IN LEGAL ANALYSISan evaluation of EXPECTATIONS ABOUT FAIRNESS AND JUSTICE in THE CONTEXT OF Investment treaty ARBITRATION DISCOURSE<br />
A BRIEF OUTLINE<br /><ul><li>Chapter 1 – Introduction
Chapter 2 – Legal Theory (an Amalgamation of the Ideas of Lasswell, McDougal, Reisman, Dworkin, Rawls, and Franck
Chapter 6 – The Q Method Study on Fairness Expectations in Investment Treaty Arbitration
Chapter 7 – Future Implications About the Use of Q Method in Legal Analysis</li></li></ul><li>TWO CONTROVERSIAL ASSUMPTIONS<br /><ul><li>There is nothing objective about law that obliges it (this is a rejection of positivist legal theory and a statement about inseparability of law and morality).
Law is a branch of morality – they are inescapably intertwined. A legal obligation is a moral obligation.
There is no knowledge about the existence of value that is objective – in the metaphysical sense (this is a rejection of pure natural law theory and a statement about how knowledge about value is gained).
Knowledge about values is gained through justification, not logic; they are distinct modes of reasoning.</li></li></ul><li>SHARED SUBJECTIVITY<br /><ul><li>It is common to say that law is objective and that values and morality are subjective.
If we when say that objective (universal, physical) knowledge about values is not possible, is subjective knowledge possible – and what would that look like?
I make the claim that the closest we can get today to value objectivity is what we can call shared subjectivity.</li></li></ul><li>THE CONTINUUM<br /><ul><li>The objective-subjective dichotomy can be rephrased as states of the world and states of the mind.
This is represented not as distinct categories but as a continuum from that which is externally observable to that which is internally unobservable.</li></ul>Logic Fact Rule Law Principle Norm Value Belief Desire Perception Intuition<br />
FOUR CLAIMS<br /><ul><li>It is posited that perceptions of fairness play a role in the development of international legal regimes.
A legal order or law is fair if it reflects a community’s shared expectations about the distribution of values.
These shared expectations about value can discovered through the analysis of competing value claims using Q methodology.
Discovery of the shared value subjectivities of a particular community can provide a moral foundation for contemporary theories of law.</li></li></ul><li>DISSECTING THE LAW<br />EXTERNAL DISCOURSE ABOUT THE LAW<br />Psychological and Sociological Concepts about the relationship of law and morality<br />INTERNAL DISCOURSE ABOUT THE LAW<br />Doctrinal concepts about the relationship of law and morality<br />What role do values play in the development of the law? <br />What role do values play in lawmaking and lawapplying?<br />
Q METHODOLOGY<br />Q is a composite of philosophical inquiry, empirical research procedures, and psychometric methods for the examination of human subjectivity.<br />Every person perceives the world differently, and Q uses these subjective viewpoints to construct typologies of different perspectives.<br />PERSPECTIVE C<br />PERSPECTIVE E<br />PERSPECTIVE A<br />PERSPECTIVE B<br />PERSPECTIVE D<br />PERSPECTIVE F<br />
THE FOCUS<br /><ul><li>What are the community’s value claims in investment treaty arbitration? – some are very observable, some are less observable.
Which of these subjective value perspectives are shared?
Do any of these shared value subjectivities form an overlapping consensus?
How can this knowledge be used in the interpretation and analysis of law (the internal discourse)?
Would a community perceive a legal order as fair if it makes and applies the law consistently with this overlapping consensus (the external discourse)?</li></li></ul><li>SOME EXAMPLES<br />Customary International Law<br /> To qualify as customary law, two elements must be present:<br />A) State Practice – the Objective Element, and<br /> B) OpinioJuris – the Subjective Element<br /> A belief that an action was carried out because it carried a legal obligation.<br />Dworkin’s Hard Case<br /> Riggs v. Palmer (New York State Court of Appeals, 1889)<br /> The Principle that “No one should be permitted to profit by his own fraud, or to take advantage of his own wrong.” (NullusCommodumCaperePotest De InjuriaSuapropria).<br />
ONE MORE EXAMPLE<br />The meaning of investment in the ICSID Convention and BITs have been interpreted in contradictory manners by various ICSID tribunals, creating unpredictability and damaging the level playing field of investors’ protection.<br />Many proponents of unrestricted resort to travaux assume, curiously, that somewhere in the ocean of delegate statements and proposals that have been recorded, one can find not only clear evidence but also the real intention of the parties.<br />The meaning of the term investment may be regarded as “ambiguous or obscure” under Article 32 of the Vienna Convention. <br />We do believe that it is fanciful to think that answers to textual obscurity or clear indicators of a proper interpretation can be found in travaux.<br />Persistent divergences among groups of tribunals and arbitrators on crucial questions of investment law have led some to challenge the system’s capacity to generate any kind of certainty at all.<br />Given the history of the ICSID Convention and a proper respect for state autonomy, tribunals should treat the definition of investment under the Convention as encompassing any plausibly economic activity or asset.<br />It is mythological to pretend that tribunals only review the travauxpreparatoiresonce they first conclude that the term requiring interpretation is ambiguous or obscure.<br />A substantial or significant contribution to the economic development of the host state is a necessary condition in defining investment for purposes of ICSID’s article 25.<br />