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 Adjunct Professor at the Federal University of Rio Grande do Sul while also practicing as a lawyer.
In 2001 he was awarded the Young Scholar Award for Legal Theory, IVR – International Association for Philosophy of Law and Social Philosophy and in 2006-2007 he was awarded both a British Academy Visiting Fellowship and the H.L.A Hart Visiting Fellowship by the Oxford Centre for Ethics and the Philosophy of Law.
His research has two main strands. First, he is interested in the interfaces between legal decision-making, ethics, and epistemology. More specifically, he is interested in investigating (a) the existential role that reasons (legal or otherwise) play in the lives of particular decision-makers and (b) the role of subjectivity, and in particular or moral perception in legal decision-making. His arguments draw from different sources but he is particularly interested on insights and arguments stemming from Aristotle’s writings on reason, ethics and politics, and on virtue epistemology.
Second, he is interested on the investigation of law's political authority and, in particular, on law's role as a mediating institution between the ultimate meaning of communal life and concrete decision-making. This understanding of law as providing mediation connects to many more specific strands of his research, in particular the relationship between law and particular justice and the political nature of private law and the private domain. In connection to private law, he is also interested in the philosophical justification of particular aspects of private law, such as contracts, unjustified enrichment and property and on bridging the gap between those theoretical foundations and the practice of private law both by using those more abstract justifications as guides for the interpretation and critique private law in a number of legal systems (especially in Scotland, England and Brazil).
Claudio is also Director of the Law School's PhD Training Programme.
The Legal Theory web pages contain further information on legal theory at Edinburgh.
"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 MichelonDireito Restituitório (Revista dos Tribunais (São Paulo), 2006)
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 MichelonAceitação 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)
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.
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.
Journal Articles
Claudio Michelon 'Las Razones de la Coherencia' (2012) Discusiones vol X, p. 139
Claudio Michelon 'MacCormick's Institutionalism between Theoretical and Practical Reason' (2010) Diritto & Questioni Pubbliche Vol 9, p.53
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' (2007) Legisprudence vol. 1, pp. 263-289
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 'Introducción: derechos sociales y la dignidad de la igualdad' (2005) Discusiones v. 4, p. 7-13
Claudio Michelon 'O Enriquecimento Sem Causa e a Administração Pública' (2004) Revista do Tribunal de Contas do Estado do Rio Grande do Sul v. 36, n. Especial, p. 45-53
Claudio Michelon 'Comentário à jurisprudência recente sobre os danos causados pelo consumo de cigarro' (2004) Revista trimestral de direito civil v. 18, p. 195-211
Claudio Michelon 'Um Ensaio sobre a Autoridade da Razão no Direito Privado' (2002) Revista da Faculdade de Direito da UFRGS v. 21, p. 101-112
Claudio Michelon 'The Justification of Authority and the Insulation of Formal Reasons' (2002) Archiv für Rechts- und Sozialphilosophie v. 88, n. 1, p. 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 v. 40, p. 47-74
Chapters
Claudio Michelon 'The public nature of private law?' in Claudio Michelon, Gregor Clunie, Christopher McCorkindale and Haris Psarras (eds) The Public in Law (Ashgate, 2012) 195
Claudio Michelon 'O Enriquecimento sem Causa no Brasil' in (eds) Obrigações (Atlas, 2011) 872-901
Claudio Michelon 'Princípios e Coerência na Argumentação Jurídica' in Ronaldo Porto Macedo Jr (eds) Direito e Interpretação: Racionalidade e Instituições (Editora Saraiva, 2011) 261
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, Fernando Atria 'Una crítica al principio de diferencia' in (eds) Filosofía y Política en Rawls (EDEVAL, 2007) 215
Claudio Michelon 'The Role of Reasons in Living a Good Life' in (eds) Applied Ethics: Papers of the 21st International Wittgesntein Symposium (ALWS (Kirchberg am Weshsel), 1998) v. VI, p. 78-83
Claudio Michelon 'The Brittleness of Experience: how universalization could disable us to do the right thing' in (eds) Proceedings of the Erasmus Seminar on Legal Theory 1997 (Munster Universität, 1997) v. 1
Notes and Reviews
Claudio Michelon 'Review of "Law, Rights and Discourse: the legal philosophy of Robert Alexy' (2008) Edinburgh Law Review Vol.12(3), p. 498
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 'The Virtuous Circularity between Positive Law and Particular Justice', School of Law Working Paper Series, 2011/11 (SSRN, 2011)
The paper argues that there is a conceptual connection between positive law and justice such that the positive allocative decision paradigmatically carried out by the application of legal rules is a necessary condition for arguments about particular justice to make sense. If one turns the focus form the distinction between distributive and corrective 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 a worthy objective and that the best (indeed the only feasible) strategy to achieve this aim is to clarify the conceptual relation between, on the one hand, distributive and corrective justice and on the other, positive law, without falling into the trap of oversimplifying that relationship in a way that many ‘informative’ conceptions of the distinction do.
Claudio Michelon 'Economic and Non-Economic Foundations for the Consumer (Fundamentos Econômicos e Não-Econômicos Para a Defesa do Consumidor)', School of Law Working Paper Series, 2010/11 (SSRN, 2010)
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.
Note: downloadable document is in Portuguese
Claudio Michelon 'MacCormick’s Institutionalism between Theoretical and Practical Reason', School of Law Working Paper Series, 2010/12 (SSRN, 2010)
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.”
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 'Principles and Coherence in Legal Reasoning (Princípios e Coerência na Argumentacião Jurídica)', School of Law Working Paper Series, 2009/08 (SSRN, 2009)
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)
Papers and Presentations
Claudio Michelon 'Coerência e Princípios' presented at Colóquio Internacional de Direito e Interpretação: Racionalidades e Instituições, São Paulo, 2008
Synopsis