Law Publications

Document Type

Article

Publication Date

2012

URL with Digital Object Identifier

http://dx.doi.org/10.2139/ssrn.2161623

Abstract

The idea of fairness is a recurrent one in international economic law and relations. By and large, however, commentators have failed to provide a structured understanding for this vital concept or explain its reflection in legal rules. This article proposes a theory of fairness as part of a broader theory of justice, suggesting that fairness is a part of justice, but not the whole of it. Rather, justice may be thought of as a combination of equality plus fairness (i.e. justice = equality + fairness), with the proviso that in any complex system of legal rules, equality must be greater than, or conceptually prior to, fairness (i.e. equality > fairness). Equality and fairness together constitute a “nested opposition” that legal rules constantly oscillate between. In the latter half of this article a look is taken at how these conceptual relationships are expressed in three regimes of international economic law: investment, trade and monetary affairs.

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