I argue that it is possible and useful to account for the content of contracts in terms of value, and not in terms of obligations. I focus on impossible contracts, i.e., contracts whose performance is impossible from the moment of their conclusion. One advantage of describe the content of contracts in terms of value is that (positive or negative) value is not generally affected by the principle that ‘ought’ implies ‘can’, and therefore impossible contracts can assign value to non-performance even if they cannot generate the correspondent obligation. A second advantage is that an event may have some (positive or negative) value in virtue of a subsequent event, and therefore an impossible contract can assign negative value to the cause of impossibility.
Discussant: Professor Claudio Michelon
The seminar will discuss some attempts to offer a systematic account of what global law is. Jorge Fabra will begin his seminar by attacking the most important elucidations of the concept available in the literature — those advanced by William Twinning, Günther Teubner, and Neil Walker. Then, he will present some methodological clarifications regarding the value of a jurisprudential account of the concept of global law. Finally, he will propose his own account of the concept of global law. His account distinguishes between three phenomena: (1) ‘global legal norms’, norms that do not belong to any particular jurisdiction, but emerge from the interaction of different legal orders; (2) ‘global legal orders’, i.e. sets of primary and secondary norms (e.g. lex mercatoria); and, more importantly, (3) the ‘fundamental norms of the international community’, i.e. norms that constitute the international legal order. He claims that these three sets of norms seem to have two particular moral features: They seem to be the only kinds of legal norms that are genuinely inescapable, and, they play an important role actualizing the demands of global justice.
Jorge will also argue that we should distinguish between “classic international law” and the third sense of “global law”. While the former is more suited to characterize norms that represent the interests of states and other actors, the latter is a different category of norms that do not reflect the particular interest of any state or any other actors, but the interests of humanity as a whole. In this sense, the third type of global law characterizes a form of emerging “public” law, with a particular complex rule of recognition that claims to be based on the interests of a putative international community.
Discussant: Professor Neil Walker
This event is kindly sponsored by the Global Justice Academy
In legal philosophy it is generally understood that when we talk about the ‘normativity’ of law what we mean is the capacity of law to represent a reason for action, and in particular a reason justifying action. It is also usually held that we can only talk of law as being genuinely normative if the reasons for action it provides figure in its addressees’ decision-making processes, that is if they become part of what Bernard Williams (1979) has called their ‘motivational set’. In this paper I take this widespread position in philosophy of law, commonly referred to as ‘reasons-internalism’, and weigh it against a basic principle shared by most existing legal systems: that for which the ignorance of the law does not constitute an excuse from it. This principle, albeit qualified in a number of respects, still constitutes a necessary element of any working legal system without which the idea of the rule of law itself could not be upheld.
A tension then arises between these two elements, for the law purports to guide conduct by motivating agents but at the same time if these agents are ignorant of the law – and thus cannot be possibly motivated by it – they are still considered liable for not complying with what the law requires. This tension is usually reconciled by saying that law needs only to be knowable, and not actually known, to its addressees.
In this paper I argue that this solution fails to resolve the tension: if law needs only to be knowable by agents in order to be considered normative upon them and thus to ascribe to them responsibility for not abiding by it, what we are indeed saying is that the reasons for action the law purports to provide are effectively external to the agents’ mental processes, i.e. they need not be related to their motivation in any relevant sense. They might be part of their motivational sets, as they often do: but this is not necessary for the ascription of legal blameworthiness. For even if they do not play any role in an agent’s decision-making process, they still constitute the standards against which her behaviour will be evaluated and ultimately assessed. As such, I argue in the last part of the paper, law constitutes possibly the most relevant example of reasons-externalism, which is in itself a very contested position in philosophy of action. I also contend that understanding law’s normativity as external to the agents’ decision-making processes represents a major difference in the way in which law and morality purport to work: in fact it differentiates them as related but nonetheless discrete normative enterprises.
Discussant: Lucas Miotto
In the seminar Francisco will discuss the effects that worldwide neoliberal tax policies have had for what he considers to be the best justification for tax law, i.e. a conception of tax law based on the principle of solidarity. For that purpose, he will analyse some alternatives for global tax policies that try to tackle global inequalities and global tax avoidance by multinational companies.
Discussant: Martin Kelly