Translating torts : a justice framework for transnational corporate harm

Abstract

The hierarchy of pluralisms – substantive and normative – can nonetheless claim a common dialectical framework in which to discuss questions of obligation. Thus, I would thus argue that a crucial component in providing a transnational legal framework for the TNE must be the Tuori/Hendry idea of a common concept or language, focused on justice. There are many legal domains which have an account (or accounts) based on justice. If justice is indeed the law’s common principle, then this applies from the extremes of Dworkin’s interpretivism to strict positivism; even the latter must admit to at least the principle that, as Perelman puts it, ‘essentially similar situations be passed on in a uniform way’. But, as Teubner argues, discursive legal justice is nonideal; it is polycontextual in that: ‘From the beginning it is split into different avenues. Each different concept of justice is realised in one specific social practice, obeys one partial rationality and one partial normativity’ Teubner rejects appeals to reciprocity and distribution due to law’s inherent imperfection in translating extra-legal norms to legal form, which ‘is why practitioners of law have always been sceptical towards rational theories of justice in the style of Rawls and Habermas’. For Teubner, juridical justice represents law’s internal struggle against itself, its self-transcendence and re-entry; a continuous cycle which strives ‘to respond sensitively to extremely divergent external demands and to strive at the same time for high consistency’. Like many, I often struggle to grasp the sophistication and abstraction of Teubner’s thinking. I hope I do not do him an injustice when I say that it seems to me that there is room for dialogue in between the Rawlsian and Habermasian concepts which Teubner rightly casts as impossible for the law to translate within its own bounded, self-referential (ir)rationality, and the pure reflexivity of justice as law’s inner Lucifer, condemned to a perpetual cycle of bringing light to law’s darker recesses before falling to the abyss of positivistic self-reinforcement. As I shall argue shortly, what law can take from moral philosophy – in this case the global justice debate – is new information 45 Unless one adopts a pure functionalist approach that denies the relevance of justice entirely. 46 See Chapter 4, p.238 47 Chaim Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning (Dordrecht, London, Boston: Reidel, 1980) 48 Teubner, (n44) at 6 49 ibid, 13 50 ibid, 10