(International) Law as Answer to Moral Risk

We argue that the idea of moral risk is necessary to understanding (a) the nature of certain morally significant relationships and their constitutive rights, duties, and responsibilities; and (b) the nature of (international) law and the character of legal rights, duties, and responsibilities. Moral risk is exposure to harmful normative change (normative change being change in reasons). On our view, law tracks some morally risky relationships and is a remedial, institutionalized response to them. Understanding law thusly helps motivate the notion that justified coercion is a necessary feature of law. The absence of centralized coercion internationally offers a troubling test case. However, our approach yields novel consequences for understanding the nature of international law and its constituent duties, rights, and obligations. Relationships of moral risk in domestic law have international analogues: an account of moral risk is indispensable in understanding the global legal order.

Thick and thin moralities and legitimacy in international adjudication – the case of the WTO

WTO adjudication faces a crisis of social legitimacy. I diagnose that crisis in terms of competing theories of interpretation, and thick and thin political moralities. WTO law’s dominant self-image is as voluntarist-positivist treaty law, reflecting an implicit thin international political morality. Interpretation is exclusively a matter of textual analysis complemented by originalist intent. Yet text is indeterminate and intent obscure, requiring a supplementary judicial gap-filling role. But that role is expressly excluded by the WTO DSU. The legitimacy problem is thus a function of the thin political morality. If instead we assume a thicker political morality, with economic duties to insiders and outsiders, the voluntarist-positivist image loses appeal, licensing an anti-positivist moral reading that can legitimise interpretation in hard cases without judicial legislation.

What Value for Consensus? Human Rights, Normative Force, and Universality

The ECtHR sometimes relies on a notion of European consensus. Reasons why consensus is seen as important include values of identity, and democratic decision making. The question is to what extent relying on consensus is justified. I propose to understand the debate on the universality of international human rights as a relevantly similar concern about consensus, bringing the two areas together to illustrate that consensus is limited in at least one way: it is not what gives human rights normative weight. First, I explore what universality entails, and why it does not speak to the normative force of human rights. Second, I draw a parallel to the debate about consensus, arguing that consensus is – similarly – not what makes human rights valuable. A sketch of what kind of argument would do the work consensus and universality aspire to do concludes.

The Puzzle of States and their Territory

No state can emerge without territory. However, only states (and some similar entities) possess territorial title. This creates a puzzle: statehood cannot emerge only in response to the rights that it grounds. Maybe the capacity to possess title is a consequence of statehood, whilst control of territory is one of its antecedents? This achieves consistency but risks oversimplification: the ‘territorial antecedent’ can be satisfied by transfers of title and statehood can endure where title persists but control does not. To explain this we must ask why statehood and territory matter. I contend that ‘political community’ is key to understanding this. States possess title because this is conducive to the development of valuable political traditions. Existentially, their emergence requires the capacity to govern physical space in a manner conducive to the same, whilst their persistence reflects the value of extant political traditions.