My project is to explore one of the main worries concerning the idea that state consent is at the basis of the moral legitimacy of institutional law and institutions. One frequent charge against the legitimacy of contemporary international institutions such as the World Trade Organization is that though they were consented to by member states, they are the product of wealthy countries taking unfair advantage of poor countries’ vulnerabilities. This charge is intuitively quite strong but it is rarely given a careful theoretical articulation.
rnMy project consists in constructing and defending a general moral conception of fairness as a standard for assessing agreements like contracts. And it gives an account of the nature of unfair advantage taking in the making of agreements. It criticizes the traditional common law standard of fairness in agreements as the avoidance of force and fraud. It defends an egalitarian and procedural account of the standard of fairness in the making of agreements. The idea is to characterize an ideal in which agreements are fairly arrived at when the parties have equal opportunities to avoid the agreement. Unfair advantage taking takes place when and to the extent that one party takes full advantage of the lesser opportunities of the other party to extract benefits from the agreement. The better-placed party need not entirely erase the differences in opportunities in order to avoid unfair advantage taking. It need only make a reasonable contribution to the enhancement of the capacity of the other party to have a say in the making of the agreement. (Thomas Christiano)