Universiteit Antwerpen

Legal Theory Workshop (UC Louvain) Mar 12, 2010

Legal Theory Workshop, March 12, 2010

Hoover Chair (UCLouvain), Salle Vives
Place Montesquieu, 3

(Click here to view the webpage)


Convenors: Axel Gosseries (Louvain) & Georgios Pavlakos (Centre for Law and Cosmopolitan Values)
(with the financial support of the Banque Nationale de Belgique)

Non-speakers are welcome to participate. Prior inscription is free but compulsory. Please send an E-mail to that effect to therese.davio@uclouvain.be


Each paper: 15 minutes presentation (papers will be pre-circulated) and 35 minutes open discussion. Lunch will be provided to the speakers

Morning session
Chair: Axel Gosseries

In Defence of Constitutional Politics
Marco Goldoni (CLCV)

In this paper, I intend to defend a normative conception of constitutional politics against certain liberal and republican interpretations of constitutionalism. On the one hand, contemporary liberalism has introduced the idea of new constitutionalism, that is, a constitutionalism based on principles and rights. In this setting, the engine of constitutional politics is located in the adjudicatory process. On the other hand, republican conceptions of constitutional politics simply reject the idea of “higher law” and equates constitutionalization to an hegemonic move that locks in certain elites. From this perspective, every politics is constitutional. After having criticized these two interpretations, on the grounds that both have a partial approach to political faculties (liberals put too much stress on reason, republicans on will), and that they do not take seriously the political aspect of constitutionalism and the philosophy of collective action, I will try to put forward a conception of constitutional politics which takes into account political representation and the principle of division of powers. Beyond reason and will, it will be necessary to introduce a third faculty: Judgement.

Trade in Services and Labour: How to Make Opportunities Equal?
Sylvie Loriaux (Nijmegen) and Alexia Herwig (CLCV)

This paper aims at determining how European and international economic law on the liberalisation of trade in services can be assessed from the perspective of distributive justice. The first part starts from the observation that gross inequalities of resources are likely to undermine the fairness of global economic negotiations and of global market competitions. It then notes that the fairness of competitions (as well as of the processes by which their rules are defined) is at the heart of what is called 'competitive equality of opportunity'. This type of equality of opportunity applies to existing competitions and makes their fairness conditional upon the satisfaction of the following three requirements: (1) the competition must be open to all, (2) success in the competition must be determined by qualification, in accordance with relevant criteria, and (3) all competitors must have a fair chance to become so qualified.

The second part of the paper focuses on the difficult notion of 'morally arbitrary factors'. It starts by showing that a 'morally arbitrary feature of a person' is not necessarily a 'feature for which a person cannot be held responsible', but is a feature that is of no relevance given the nature of the goal of the stipulated opportunity. The question will be to determine whether it is reasonable to hold that persons' talents may, but their place of residence should not, be allowed to affect their chances of benefiting from the liberalisation of trade in services.

David Miller and Global Justice: Two Concepts of Exploitation?
John Pearson (CLCV)

In his earlier work on global justice (1999, 2004), David Miller emphasised that, along with human rights and absence of historical injustice, non-exploitation is one of the central components in his non-egalitarian theory of global justice. However, his recent book National Responsibility and Global Justice contains no extended analysis or discussion of the concept of exploitation. This paper examines whether Miller’s approach can accommodate a concern with exploitation, and if not, what consequences this has for the theory. I examine two understandings of exploitation.

I first look at exploitation of vulnerability. In this conception, an agent A uses agent B’s disadvantaged situation to extract benefits from B. An example of this would be a pharmacist who charges an excessive amount for a vital drug that his customer needs. I argue that Miller’s conception of human rights as basic needs would make people vulnerable to exploitation. Miller uses basic needs as a floor for universally respected human rights, but separates these from social and citizenship rights. I argue that this is inadequate by arguing that social and citizenship rights are themselves necessary for the prevention of exploitation. For example, where persons lack the right to freedom of association, they lack the ability to act to challenge arrangements for the provision of basic needs that make them vulnerable to exploitation.

I then turn to a second reason for concern with exploitation. This second conception focuses on the stability and legitimacy of social co-operation. The argument here is that some conception of non-exploitation is necessary for minimally legitimate and stable social co-operation: the distribution of the goods that result from such co-operation should meet some minimal standards of fairness. However, it is not clear how Miller’s account of global justice would incorporate this demand, because he denies that the value of divisible goods can be compared across social contexts. This raises serious problems for Miller’s conception of global justice, because it suggests that he cannot provide a conception of exploitation suitable for economic co-operation that extends across the boundaries of cultural communities. It is precisely this kind of economic co-operation that has increased under conditions of globalization.

Applying these two conceptions of exploitation suggests that Miller’s theory of global justice is incomplete and inadequate as it stands. On the one hand, it needs to pay closer attention to the role of social justice and citizenship rights in preventing exploitation of vulnerable people. On the other hand, it needs to provide an account of how to share the products of social co-operation in a fair way. The latter of these two is the most serious philosophical challenge for Miller’s theory.

Lunch break

Afternoon session
Chair : Georgios Pavlakos

Constitutionalizing Global Law : A normative theory of law in times of Globalization
David Restrepo Amariles (davidamariles@gmail.com) (Centre Perelman)

In recent years law has been at pains to confront the challenge of ordering the increasing number of global issues that request transnational solutions on the economic, social and political realms. The emergence of new transnational dynamics that imply the interaction of global, national and local actors who have at their disposal private and public legal resources in a wide variety of different locations has raised questions on the capacity of modern-conceived law to provide appropriate normative standards and to deal with particular claims of justice. Yet, globalization raises a central paradox to modern philosophy. It is the pinnacle of modern liberal philosophy as far as the ethos of economic and political liberalism gives primacy to the individual in political and economic terms. However, the new world order takes legitimacy away from the individual as the modern-conceived order individual-state-regulation, designed to guarantee individual rights, is at pains to regulate transnational phenomena. Thus, globalization at the one and the same time emancipates the individual and threatens the power and legitimacy of the nation state. Differently stated, globalization favors transnational implementation of liberal political, economic and social systems, while at the same time it erodes a stated-centered conception of the political society, putting at risk the protection of individual rights. This paper will address this modern paradox by proposing some guidelines on a normative global order based on constitutional premises.

Left and Right Libertarianism’s differences on Self-Regulation
Igor Caldeira (Chaire Hoover)

A critique of State intervention is always made from the point of view of libertarian authors. Friedrich Hayek defends an abstract law enforced by the State, but that ‘common’ or ‘private’ law should maintain a key position. Georges Gurvitch also defends ‘social law’ as a real kind of regulation that must be taken more seriously. Nevertheless, divergences may (and in fact do) appear between the two authors, not only on the relevance/power of such kind of regulation, but also on its content. We propose to explain each author’s standings on the issue. We will then compare them regarding the role of the State, of groups and of individuals. Finally, we will look at the differences concerning the content (namely social rights) and understand if a general libertarian theory of regulation, with common traits, can be found, or if they are irrevocably separated by ideological differences.

Between Triviality and Insensitivity : Against the Will Theory of Rights
Nicholas Vrousalis (Chaire Hoover)

This paper recasts an old objection to the will theory in the light of recent attempts to defend it, notably by Nigel Simmonds and Hillel Steiner. It enlists the idea of duties of care –effectively restrictions over legal officials’ discretionary exercise of powers- to form a dilemma for such theorists: either will theory discretion over powers is restricted by duties of care, or it is not. If will theory discretion is thus restricted, then the will theory becomes extensionally equivalent to non-will theories (such as the interest theory), in which case it is substantively trivial. If, on the other hand, will theory discretion over powers is not thus restricted, then the will theory is woefully insensitive to the (value of the) lives of the disempowered, in virtue of the fact that these lives are viewed as not meriting direct normative consideration.

Closing comments