Claudio Michelon graduated LLB in 1992 from the Federal University of Rio Grande do Sul (Brazil) and, in 1996 obtained an M.Phil by research from the same University. He gained his doctorate from the University of Edinburgh in 2001. From 2001 to 2006 he lived in Brazil and was an assistant professor at the Federal University of Rio Grande do Sul while also practicing as a lawyer. He joined Edinburgh Law School in 2007.
Claudio Michelon's research focuses on (i) legal reasoning and legal decision-making and on (ii) the underlying normative structure of private law doctrines, rules, and concepts.
In relation to legal reasoning, his work investigates a number of related topics, ranging from the role of subjectivity (and in particular of practical perception) in legal decision-making to the structure of particular kinds of legal argument. In his book Being apart form Reasons, he addresses the possibility of insulating different orders of reasons in moral and legal decision-making. In addressing those topics, he draws on diverse philosophical resources, including classical practical philosophy, virtue theory, virtue epistemology, theories of perception, and argumentation theory.
His investigation on private law theory encompasses a number of subjects, in particular the relationship between private law and particular justice (i.e. corrective and distributive justice), the role of private law in structuring the private sphere, and the possibility of conceiving aspects of private law as possessing intrinsic value.
The Legal Theory web pages contain further information on legal theory at Edinburgh.
Reasoning with Precedent (LLM) (Course Organiser)
The Practice of Legal Argument (Honours) (Course Organiser)
Felipe Oliveira de Sousa 'Reason-Giving as a Form of Recognition: a study on the moral nature of practical decision-making'
Andre Prado Fernandes 'MARICAS SUDACAS1 AND THE PROMISE OF HUMAN RIGHTS: can we not want them?'
Joaquin Alonso Reyes Barros 'Procedural fairness and Aquinas: theory of justice: Giving the Devil the Benefit of the Law'
Constanza Salgado 'Private property and its public dimension.'
Books and Reports
Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, After Public Law, (Oxford University Press, 2013)
Abstract: Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance?The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general.Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.
Maksymilian Del Mar, Claudio Michelon, The Anxiety of the Jurist: Legality, Exchange, and Judgement, (Ashgate Publishing, 2013)
Abstract: The contributions in this volume pay homage to Zenon Bankowski, with a focus on problems concerning law's normalization and the revitalizing force of anxiety. Ranging from political critique to methodological issues and from the role of human rights in development to the role of parables and analogy in legal reasoning, the contributions themselves are testament to the richness of Bankowski's scholarship, as well as to the applicability of his core ideas to a wide range of issues. Divided into five parts, the book focuses on the role and methods of the jurist; conceptions of legality and the experience of living under rules; jurisprudential issues affecting exchange and the market; and the burden and methods of legal judgement. It also includes Bankowski's 2011 valedictory lecture and a bibliography of his work. Comprising all original contributions, the contributors represent a balance of established, leading figures and younger, emerging scholars in the field of legal and social theory.
Claudio Michelon, Gregor Clunie, Christopher McCorkindale, Haris Psarras, The Public in Law: Representations of the Political in Legal Discourse, (Ashgate Publishing, 2012)
Abstract: This collection brings together a group of scholars to discuss the operation of 'the public' in a range of different legal spaces. The work provides a synoptic overview of the instantiations of 'the public' which appear in a number of legal spheres and attempts to ascertain whether the notion can have coherent or congruent meanings across these heterogeneous domains. A key question which frames the contributions is whether 'the public' operates as a bona fide interface between law and society.
Claudio Michelon, Being Apart from Reasons: The Role of Reasons in Public and Private Moral Decision-Making, (Kluwer Academic Publishers, 2006)
Abstract: Being Apart from Reasons deals with the question of how we should go about using reasons to decide what to do. More particularly, the book presents objections to the most common response given by contemporary legal and political theorists to the moral complexity of decision-making in modern societies, namely: the attempt to release public agents from their argumentative burden by insulating a particular set of reasons from the general pool of reasons and assigning the former systematic priority over all other reasons. That strategy is apparent both in Rawls' claim that reasons concerning the right are systematically prior to reasons concerning the good and in Raz's claim that pre-emptive reasons are systematically prior to first-order reasons. The same strategy is also instantiated by certain arguments for the procedural value of law, such as Jeremy Waldron's. In the book, each of those arguments for the insulation of reasons is objected to in order to defend the thesis the reasoning by public agents must always be as comprehensive as possible. The remaining chapters object to those arguments mentioned above which aim at justifying the exclusion of certain reasons from public agents' decision-making.
Claudio Michelon, Direito Restituitório, (Revista dos Tribunais (São Paulo), 2006)
Abstract: The book is a commentary on the provisions in the new Brazilian Civil Code regarding the law of Unjust Enrichment. The commentary is both a theoretical analysis of the provisions and a set of guidelines for their interpretation.
Claudio Michelon, Aceitação e Objetividade: Uma Comparação Entre as Teses de Hart e do Positivismo Precedente Sobre a Linguagem e o Conhecimento do Direito, (Revista dos Tribunais (São Paulo), 2004)
Abstract: The book tries to answer a puzzling question. If Scandinavian Realists, Kelsen and HLA Hart agreed that law and morality are conceptually independent and that law has social sources, how come they disagreed so radically about what the law is? The thesis argued for in the book is that each had a different conception of what counts as an objective fact and that explain the main differences in their respective conceptions of law.
Claudio Michelon, 'What has Private Law ever done for Justice? ', (2018), Edinburgh Law Review, Vol 22, pp 1-22
Abstract: This article identifies and explains an important and distinctive way in which a traditional set of private law rules, doctrines, and concepts (ie those that allocate particular goods to particular individuals) relate to distributive justice. Such rules, doctrines, and concepts are instrumentally valuable vis-à-vis a just allocation of goods in two different ways. On the one hand, and less controversially, they sometimes possess the ability to cause (or contribute to causing) such states of affairs into being. The article shows that they also discharge a constitutive function in relation to distributive justice, one that is required by conceptions of distributive justice that are centred around allocation-unbound justificatory criteria (which constitute the vast majority of the available accounts of distributive justice).
A. Amaya, C. Michelon, 'Introduction to ‘Virtue and Law’ symposium ', (2018), Jurisprudence, Vol 9, pp 1-5
Abstract: This is the introduction to the special issue of "Jurisprudence" which addresses developments on Virtue Jurisprudence.
Claudio Michelon, 'Lawfulness and the perception of legal salience ', (2018), Jurisprudence, Vol 9, pp 47-57
Abstract: The ability to identify all (and only the) legally salient properties within a complex situation is a subjective trait necessarily possessed by a lawful person. This ability is better explained as a type perception. The paper puts forward an account of the perception of legally salient properties in which perception (i) affords a preliminary ordering of the total information received (ii) while allowing for the formation of a remainder that explains the peripheral legal perception experienced legal practitioners develop over time. After this account of legal perception is in place, the paper considers the relationship between this aspect of subjectivity and complete virtue, in particular, practical wisdom and lawfulness.
Luis Duarte D'Almeida, Claudio Michelon, 'The structure of arguments by analogy in Law ', (2017), Argumentation, Vol 31, pp 359-393
Abstract: Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case (the target case). Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper (Sections 2 to 4) that the common view of the structure of analogical arguments in law cannot overcome these hurdles. In the second half (Sections 5 to 7) we develop an original account that aims to succeed where others failed.
Claudio Michelon, 'Reasoning Naturally: A review of John Keown and Robert P George (eds), Reasons, Morality, and Law: The Philosophy of John Finnis', (2015), Jurisprudence, Vol 6, pp 194-205
Claudio Michelon, 'Native Sources and Comparative Resources: Unjust Enrichment in Brazil after the 2002 Civil Code', (2014), Restitution Law Review, pp 59
Claudio Michelon, 'Virtuous Circularity: Positive Law and Particular Justice', (2014), Ratio Juris, Vol 27, pp 271-287
Abstract: This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the distinction is worthwhile and that this can only be accomplished by the introduction of positive allocation schemes.
Claudio Michelon, 'Las Razones de la Coherencia ', (2012), Discusiones, Vol X, pp 139
Claudio Michelon, 'MacCormick's Institutionalism between Theoretical and Practical Reason ', (2010), Diritto & Questioni Pubbliche, Vol 9, pp 53-62
Abstract: This paper attempts to identify some of Neil MacCormick main contributions to the contemporary debate in legal theory and to locate his efforts in legal theory’s own history of ideas.
Claudio Michelon, 'Politics, Practical Reason and the Authority of Legislation ', (2008), Legisprudence, Vol 1, pp 265-89
Abstract: The article argues that the structure of practical reason has political implications regarding the authority of legislation. After arguing against one thesis about the relation between practical reason and legislative authority, namely, Waldron’s 'doctrine of the wisdom of the multitude', it goes on to argue that the role of commonly held beliefs in practical reason helps to justify the authority of legislation. The connection between practical reason’s structure and legislative authority explains why certain institutional designs embody a particular kind of recognition of other members of the political community. That recognition is connected to a particular division of reasoning labour between political institutions which, in turn, allows for a conception of political representation in which representatives are neither simply the bearers of their constituents opinions nor an elite that need not take in consideration those opinions. The last section discusses how agreement can be politically relevant in plural societies.
Claudio Michelon, 'LAW, RIGHTS AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY. Ed by George Pavlakos ', (2008), Edinburgh Law Review, Vol 12, pp 498-99
Abstract: Book review.
Claudio Michelon, 'Introducción: Derechos sociales y la dignidad de la igualdad', (2005), Discussiones, Vol 4, pp 7-13
Claudio Michelon, 'Comentário à jurisprudência recente sobre os danos causados pelo consumo de cigarro ', (2004), Revista trimestral de direito civil, Vol 18, pp 195-211
Claudio Michelon, 'O Enriquecimento Sem Causa e a Administração Pública ', (2004), Revista do Tribunal de Contas do Estado do Rio Grande do Sul, Vol 36, pp 45-53
Claudio Michelon, 'Um Ensaio sobre a Autoridade da Razão no Direito Privado ', (2002), Revista da Faculdade de Direito da UFRGS, Vol 21, pp 101-12
Claudio Michelon, 'The Justification of Authority and the Insulation of Formal Reasons ', (2002), ARSP Archiv für Rechts und Sozialphilosophie, Vol 88, pp 51-73
Claudio Michelon, 'Um Ensaio sobre a História, as Possibilidades e os Limites de uma Teoria das Invalidades dos Atos Jurídicos ', (1998), Revista do Ministério Público do Estado do Rio Grande do Sul, Vol 40, pp 47-74
Claudio Michelon, 'But to Life Inside the Law, You Must Be Honest ' in Maksymilian Del Mar, Claudio Michelon (ed.) The Anxiety of the Jurist (Ashgate Publishing 2013) 83-100
Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker, 'Introduction ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 1-10
Abstract: This chapter introduces the themes treated in this book, in particular that of continuity and change in public and private law. The title of the volume is open to a variety of interpretations. This introduction shows how those interpretations map on to the aims of the book. This is done through the exploration of the nature and essence of public law as it has existed in the state context, the relationship between public law and its ‘after’, namely private law, as well as the ways in which global changes challenge these understandings given changes in the nature and role of the state.
Claudio Michelon, 'The Public, the Private and the Law ' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 83-102
Abstract: Reflections on the movement towards a ‘publicization of private law’ are often presented as narratives of encroachment of a public law mentality into private law. Conversely, discussion on the movement towards the ‘privatization of public law’ is also presented as a narrative of encroachment running in the opposite direction. This chapter shows how these narratives rest on an oversimplified account of the relationship between, on the one hand, the underlying normativity of the public and the private domains of social action and, on the other, the normativity of public and private law. A more complex (and less naïve) understanding of that relationship would allow for a better understanding of both movements. As the argument goes, some of the central underlying normative assumptions of law (in general) do not overlap significantly with the broader normative assumptions embedded in the distinction between a public and a private domain of social action (as it is often assumed). Once those different normative assumptions are laid bare it is possible to re-imagine the ‘publicization of private law’ as a narrative of fulfilment, rather than a narrative of encroachment.
Claudio Michelon, 'The Public Nature of Private Law? ' in Claudio Michelon, Gregor Clunie, Christopher McCorkindale, Haris Psarras (ed.) The Public in Law (Ashgate Publishing 2012) 195-204
Claudio Michelon, 'Practical Wisdom in Legal Decision-Making ' in Amalia Amaya, Hock Lai Ho (ed.) Law, Virtue and Justice (Hart Publishing 2012) 29-51
Claudio Michelon, 'Princípios e coerência na argumentação jurídica ' in Ronald Porto Macedo Jr., Catarina Helena Cortada Barbieri (ed.) Direito e Interpretação (Editora Saraiva 2011)
Abstract: The central thesis of the paper is that all forms of legal reasoning from principles that can be understood as arguments grounded on coherence have a different (perhaps easier) underpinning political justification than those forms of utilization of principles that cannot be seen as springing from coherence (such as the notion of proportionality in the strict sense)
Claudio Michelon, 'O enriquecimento sem causa no Código Civil brasileiro ' in Renan Lotufo, Giovanni Ettore Nanni (ed.) Obrigações (Atlas 2011) 872-901
Claudio Michelon, 'Neil MacCormick ' in Vicente de Paulo Barretto (ed.) Dicionário de Filosofia do Direito (Renovar (Rio de Janeiro) 2006) 556-59
Claudio Michelon, 'Practical Reason and Character Traits Remarks on MacCormick's Sentimentalist Theory of Moral Perception' in Zenon Bankowski, James MacLean (ed.) The Universal and the Particular in Legal Reasoning (Ashgate Publishing 2006) 115-27
Claudio Michelon, 'Direito e Moralidade ' in Vicente de Paulo Barretto (ed.) Dicionário de Filosofia do Direito (Renovar (Rio de Janeiro) 2006) 236-40
Claudio Michelon, 'The Role of Reasons in Living a Good Life ' in Applied Ethics (ALWS (Kirchberg am Weshsel) 1998) 78-83
Claudio Michelon, 'The Brittleness of Experience How Universalization Could Disable Us to Do the Right Thing' in Proceedings of the Erasmus Seminar on Legal Theory 1997 (Munster Universität 1997)
Claudio Michelon, 'The Public Nature of Private Law? ' 2011
Abstract: In this paper the author challenges the liberal vision of the private sphere as a realm of in which agents are justified in acting without taking into consideration anyone else’s interests. The private realm cannot be thought in isolation of private law, which should in turn be conceived as an embodiment of the mutual interest of the members of that group in the flourishing of one another.
Claudio Michelon, 'Practical Wisdom in Legal Decision-Making ' 2010
Abstract: This paper’s objective is to provide an account of certain aspects of a relationship between, on the one hand, moral and intellectual virtues and, on the other hand, the phenomenon of law-application. The paper is not centrally concerned with the relationship between a general conception of ethics (i.e. virtue ethics ) and law, but instead focuses on the relationship of certain traits of character, in particular certain aspects of practical wisdom, and the process of legal decision-making. The paper’s central objective is to present a plausible picture of subjectively possessed virtue, and in particular of practical wisdom, that is able to play a role in legal decision-making.
Claudio Michelon, 'MacCormick’s Institutionalism between Theoretical and Practical Reason ' 2010
Abstract: This paper attempts to identify some of Neil MacCormick’s main contributions to contemporary debate in legal theory and to locate his efforts in legal theory’s own “history of ideas.”
Claudio Michelon, 'Fundamentos Econômicos e Não-Econômicos Para a Defesa do Consumidor ' 2010
Abstract: This article aims at contributing to the mapping of the relationship between philosophy and economy in the foundation of consumer protection and, in particular, in consumer law. This modest objective is achieved by means of two different maps, to wit (a) a map of the relationships between the economical and politico-philosophical discourses in relation to consumer law and, (b) a map of the relations between consumer law and arguments about political justice.O presente artigo tem o objetivo singelo de contribuir para o mapeamento das relações entre filosofia e economia na fundamentação da defesa do consumidor e, em particular, do direito do consumidor. Esse objetivo modesto se cumpre por meio de dois mapas distintos, a saber, (a) um mapa das relações entre o discurso econômico e o discurso da filosofia política sobre o direito do consumidor e, (b) um mapa das relações entre direito do consumidor e argumentos sobre justiça política.
Claudio Michelon, 'Princípios e Coerência na Argumentacião Jurídica: Principles and Coherence in Legal Reasoning' 2009
Abstract: The central thesis of the paper is that all forms of legal reasoning from principles that can be understood as arguments grounded on coherence have a different (perhaps easier) underpinning political justification than those forms of utilization of principles that cannot be seen as springing from coherence (such as the notion of proportionality in the strict sense).(Paper is in Portugese)