In this chapter, I argue that international criminal law institutions must satisfy two criteria to justify their claim to legitimate authority. First, they need to ensure fair trials. But while fairness is a necessary condition for the legitimate authority of the international exercise of criminal justice, it is not a sufficient condition. Institutions need to answer the subordination complaint: When some rule, others are subordinated to their rule – and the point of legitimate institutions is to address how this fact can be reconciled with the equal status of persons. An adequate way to respond to the subordination complaint is to vest institutions with democratic procedures that ensure equal control over the coercive rule of an institution. In the final part of chapter five, I highlight two strategies that enable states and individuals to exercise equal control over the court. The first strategy involves a legislative assembly that deliberates and decides on questions of criminal justice and institutional design. The second strategy seeks to make judicial lawmaking, where it is inevitable, more accountable to the public.

At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows that many (perhaps most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced. This chapter explains why this goal of fairness, in the context of these cases, can never be met absent a consideration of the virulence of sanism and pretextuality, along with the misuse of heuristics and false “ordinary common sense.” These factors enable much of society to ignore gray areas of human behavior, and predispose fact-finders to endorse beliefs in accord with their prior experiences.

Equality and equal treatment are the principal purpose of WTO law. However, that purpose is accomplished in varying conditions, which make it difficult to regularly attain the consistency and coherence that an egalitarian and obligatory conception of the law assumes. Consequently, this chapter proceeds to demonstrate how WTO law is focused secondarily on fairness and corrective justice and how this focus begets a subordinate emphasis in law on rights, which in turn gives rise to a contractual structure that is retrospectively oriented and reasoned inductively. It also demonstrates how various features of WTO law like the non-violation cause of action and implementation are consistent with such a rights-based ethos.

Fairness concerns are ubiquitous in the realm of redistributive politics. This chapter builds on research across the social sciences to provide a parsimonious approach to the study of fairness “in action.” In Western democracies, reasoning about the fairness of redistributive social policies implies two types of fairness evaluation: (1) how fair is it for some to make (a lot) more money than others in the marketplace, and (2) how fair is it for some to receive more in benefits than they pay in taxes? Each question calls to mind a different norm of fairness: the proportionality norm, which prescribes that individual rewards be proportional to effort and talent, and the reciprocity norm, which prescribes that cooperative behavior be rewarded more than uncooperative behavior. Agreement with these two norms is quasi-universal. Where people differ is in their beliefs about the prevalence of norm-violating outcomes and behaviors. Accounting for the nature and empirical manifestations of fairness reasoning provides a new understanding of the demand side of redistributive politics in times of rising equality.

There is no getting around the fact that we live in a social and cultural environment and there is no denying the fact that the laws of our society deeply affect its character. From the fact that law impacts the environment of those who are subject to it, it does not follow that legal officials should attempt to improve its ethical character. This chapter presents a presumptive case for why legal officials are not only permitted but also have a duty to do so. Ethical environmentalism is the political project that aims to satisfy that duty. After clarifying the notion of an ethical environment, and relating it to the aspirational ideal of the common good of a society, the chapter argues that ethical environmentalism is supported by considerations of fairness. The relation between fair treatment and neutral treatment is then explored and clarified. Ethical environmentalism presupposes a public/private distinction. The shared public world, as contrasted with the private thoughts and activities of individuals, defines its scope. With that in mind, the chapter distinguishes two forms of legal moralism, character-centered and status-centered, and discusses how each form relates to the project of ethical environmentalism.

In this essay, we review the Technology and Measurement around the Globe chapters with an eye toward integration and synthesis. We primarily focus on implications for testing, and then make connections to the broader world of nontest assessment. We identify themes of privacy, fairness, workplace applications, and emerging technologies, and offer a research agenda for future investigations that seek to understand culture, technology, and measurement.

Fairness concerns play an important role in wage formation, with unfair treatment affecting morale and labor productivity. These forces can lead to unemployment and affect the pattern of relative wages and employment. But behavioral evidence shows that perceptions of fairness can be influenced by purely nominal changes in wage rates, which implies that unemployment will be inversely related to inflation, also in the long run; there is no natural rate. Moreover, social norms only persist if they are affirmed by actual behavior while, conversely, outcomes that are well-established will come to be expected and accepted as fair. These endogenous changes in fairness norms can generate employment hysteresis, with the precise implications for economic policy and the relation between unemployment and inflation depending on the details of the model. Models of inflation need modification in developing economies with large amounts of underemployment. Drawing on a structuralist tradition and insights from behavioral economics, the chapter presents a stylized model in which inflation is determined by distributional conflict and cross-sectoral interactions between demand and supply side forces.

It is often said that while the West recognized the rule of law, China did not. Many scholars believe that Chinese courts applied Confucian norms of conduct that were expressed, not as rules, but as moral principles. Chinese magistrates, however, decided cases according to known rules. These rules concerned, not standards of conduct, but with the punishment appropriate in various cases of wrongdoing. A great deal of energy and intellectual sophistication went into determining how severely one offense should be punished compared with another. This concern went back to the first, and anti-Confucian dynasty, the Qin. It explains why the rule of law in China differed from the rule of law in the West, and why, although it was compatible with Confucianism, it was not an expression of Confucian moral principles.

This chapter aims to identify and analyze Western influences – French, German and English – that played into the conception of contractual consent emanating from the PRC CC provisions on contracts. Looking to the Chinese treatment of contract formation, contract interpretation, mistake as to present or future facts, good faith and abuse of rights, contractual fairness in the context of standard form contracts and some aspects of contract remedies, it is determined that the Chinese code provisions on contract on the whole clearly motion to a continental (French/German) rather than English model, the only exception perhaps being with respect to the duty to inform, which the Chinese code refrains from explicitly endorsing. As between French and German influences, moreover, the PRC CC seems more heavily suffused with the latter, it coming closest to French law only with respect to mistake as to present facts and certain aspects of good faith – at least insofar as the Chinese conception of delictual liability can be analogized to the French, which remains to be seen.

German insistence on a highly subjective understanding of fair treatment in early twentieth-century world politics is often mistaken for wanton status-seeking. I disentangle status-seeking from fairness-seeking by identifying where pure status-seeking versus fairness-seeking arguments diverge: the degree to which state actors demand exclusive rights and privileges. Feeling unjustly rewarded for its great power position, Wilhelmines leaders provoked two crises over the status of Morocco. However, at first, it did not seek any special advantages for Germany. Instead Germany sought the moral high ground by forcing the convocation of an international conference to settle the question of Western countries’ rights more generally. In the second crisis, Germany once again reacted strongly to increasing French influence in Morocco without the compensation that France had offered to other countries. I supplement these case studies with two survey experiments conducted in another suspected status-seeker, contemporary Russia. Respondents respond to status as unfair rather than a threat to Russian status, prefer a more inclusive organization that admits Russia but also other countries who deserve to be included by virtue of their GDP, and even indicate a willingness to exclude Russia when (manipulated) fairness dictates.