The Puzzle of Competitive Fairness and the Justification of (Non-Sovereign) Power

In many cases, judging the fairness of an outcome includes examining whether various claimants thereon were fairly positioned, such that the outcome results from a fair competition amongst them. In market societies such competitive fairness is a concern across many areas of law. However, it is also frequently deployed beyond the state, to justify or criticise the behaviour of states and market actors, and to make sense of key principles of international trade, investment and tax law. While it shares features with familiar values, including equality of opportunity, pure procedural justice, and economic efficiency, none can adequately explain the value of competitive fairness. Equality of opportunity expresses persons’ underlying moral equality; yet competitive fairness is frequently applied amongst entities that lack this underlying moral equality. Pure procedural justice requires prior arguments to define the relevant procedures; yet competitive fairness is often invoked to criticize these. Efficiency may recommend competitive processes, but it may also directly conflict with competitive fairness. This is the ‘puzzle’ of competitive fairness: it is a pervasive feature of judgments that we do in fact make, but it does not readily reduce to anything that is plausibly morally basic. I respond by explaining competitive fairness as expressing a concern for the justification of power to the subjects thereof. Various scholars (Nagel, Blake, Risse, Dworkin) have linked distributive fairness with the justification of sovereign power. However this is not the only form of power that requires to be justified, particularly in cross-border contexts; and it is in the justification of non-sovereign exercises of power that competitive fairness seems most relevant. This includes both exercises of state power affecting outsiders, and private power insulated from market conditions. This reconstruction in turn makes sense of recurring doctrinal problems.