Document Type

Article

Publication Date

Winter 2009

Keywords

Transnational legal analyis, Transnational policy analysis, Maximization

Disciplines

Human Rights Law | Law and Economics | Law and Society | Legal History

Abstract

It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing.

To analyze maximization language on the one hand, and equalization and identification language on the other, is to "take distribution seriously" in legal and policy analysis. It is to recognize that law and policy are as distributive and person-defining as they are aggregative. It is also to recognize that law and policy treat us as equals in some respects-those by which they identify and "count" us as politically relevant-and as non-equals in other respects. Explicitly attending to these "respects" brings transparency about the degrees to which our laws and policies identify, "count," and treat us as equals in the right respects.

This Article addresses how to take distribution seriously in transnational legal and policy analysis. It does so by two means, keyed to the principal ways in which distribution is typically implicated in legal and policy analysis: first, by careful attention to the internal structures of the global welfare functions favored by most economically oriented analysts; and second, by reference to what linguists call the "cognitive grammar" of non-formal distributive language, a structure that mirrors the structure of distribution itself. Both modes of analysis yield a workable method to test proposed maximization norms for their normative propriety, and an attractive distributive ethic that can serve as a normative touchstone for transnational legal and policy proposals

Publication Citation

Columbia Human Rights Law Review, vol. 40, no. 2 (Winter 2009)

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