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Jurisprudence and the Interpretation of Precepts for International Business

Published online by Cambridge University Press:  23 January 2015

Kevin Thomas Jackson
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Abstract:

Competing schools of contemporary jurisprudence can be “internationalized” to elucidate special problems in interpreting obligations of multinational firms under emergent corporate and international codes. An “integrity” model proves superior to a relativist conception of international business precepts. An integrity jurisprudence provides a coherent vision of a global rule-of-law and ethics-of-principle for the world community’s rights correlative to MNC obligations while accomodating the indeterminate and contestable nature of interpretations of such textually-based directives.

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Articles
Information
Business Ethics Quarterly , Volume 4 , Issue 3 , July 1994 , pp. 291 - 320
Copyright
Copyright © Society for Business Ethics 1994

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References

Notes

1 See, W. Frederick, “The Moral Authority of Transnational Corporate Codes,” Journal of Business Ethics, vol. 10 (1991), pp. 165–77; see also, G. S. Trisciuzzi, “Multilateral Regulation of Foreign Direct Investment,” in B. S. Fisher and J. Turner (eds.), Regulating the Multinational Enterprise, (1983).

There is little likelihood that multinational enterprises will be subject to the authority of an international regulatory agency in the near future. A great amount of attention, however, is being paid to the establishment of codes of conduct [which] have been seen as an alternative means to constitute an international moral authority by agreements among governments and to provide guidelines for multinational business activities. Ibid,, at p. 147.

These global initiatives range from guidelines developed by business and consumer groups (the Sullivan Principles, and the WHO’s Code of Marketing Breast Milk Substitutes), to regimes undertaken by nation-states inter se (GATT), to instruments developed jointly between business and government for regulating international commerce (EC, the Andean Common Market) to instruments developed by various global organizations (the ILO’s Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, OECD’s Declaration on International Investment and Multinational Enterprise). L. Preston, “The Evolution of Multinational Public Policy Toward Business: Codes of Conduct,” (unpublished manuscript, October, 1987).

2 See, A. Altman, Critical Legal Studies: A Liberal Critique, (1990).

3 See, R. Dworkin, Law’s Empire, (1986).

4 See, Windsor, “Defining the Ethical Obligations of the Multinational Enterprise,” in W. M. Hoffman et al (eds.), Ethics and the Multinational Enterprise, (1986).

5 See, T. Donaldson, The Ethics of International Business, (1989).

6 This hypothesis is connected to critical legal studies (CLS), which Altman ultimately finds consistent with the very liberalism from which CLS has traditionally sought to distance itself as a “radical” theory of law.

7 See, A. Altman, Critical Legal Studies: A Liberal Critique, (1990).

8 Ibid., at pp. 117–20.

9 Ibid., at p. 105.

10 Ibid., at p. 120.

11 International Labour Conference, Provisional Record of Sixty-Eighth Session, No. 30A (June 21, 1982).

12 In addition, Article 7 of the Convention granted the right to notification of charges against the worker. Article 8 accorded workers the right to a review by an impartial body if they allege that they have been dismissed unjustly.

13 See, G. Steiner and J. Steiner, Business, Government, and Society: A Managerial Perspective (5th ed., 1988), at pp. 117–18.

14 “The President is authorized to limit the importation into the United States of any product or service of a foreign country to the extent to which such foreign country benefits from, or otherwise takes commercial advantage of, any sanction or prohibition imposed by or under this Act.” 22 U.S.C. 5002.

15 Altman, Critical Legal Studies, at p. 105.

16 The recent debates at the United Nations environmental summit are a notable example of this.

17 Two principal counterarguments advanced by some representatives of developed countries are (i) that the sheer number of less developed countries gives them great (potential) power to shape the evolution of international law to their benefit, and (ii) that the trend in international law has been to accord developing countries increased protection. See, D. F. Vagts, “The Question of a Reference to International Obligations in the United Nations Code of Conduct on Transnational Corporations: A Different View,” UNCTC Current Studies, Series A, no. 2, (1986).

18 See, Universal Declaration of Human Rights, ILO Tripartite Declaration, Helsinki Final Act, TNC Code.

19 See, Frederick, note 1, supra.

20 Law’s Empire, at p. 211.

21 Arguably, consistency is mandatory for executive and administrative activities as well, since both are in principle subject to judicial review and legislative control.

22 Law’s Empire, at p. 219.

23 See, e.g., The Rule of Law and Human Rights, (1966).

24 Law’s Empire, at p. 211.

25 Methodologically speaking, the ethical algorithm resembles Hart’s rule of recognition, which is a secondary rule that provides an ultimate test for the legal validity of primary rules of obligation in a legal system. For Hart, rules of recognition cure the defect of uncertainty attending primary rules of obligation. The Concept of Law, (1961) However, Hart denies that there is any rule of recognition for the international legal order. For a contrary view, see, D’Amato, “Is International Law Really ‘Law’?,” Northwestern University Law Review, vol. 79 (1985), p. 1293.

26 T. Donaldson, The Ethics of International Business, (1989).

27 Far too many corporate executives and managers subscribe to the dictum that legal obligation is reducible to economic assessments of costs and benefits.

28 Donaldson lists only ten rights as basic, or fundamental international rights. These are the rights to: freedom of physical movement, ownership of property, freedom from torture, fair trial, nondiscriminatory treatment, physical security, freedom of speech and association, minimal education, political participation, subsistence.

29 Some international texts explicitly reference corporations as bearing obligations in regard to human rights. The International Labor Organization, for instance, in an effort to promote the right to freedom from apartheid, recommends that transnational employers, together with nations, “cease all co-operation with South African authorities in the implementation of apartheid legislation” having an effect on the employment of Black South Africans. United Nations International Labor Organization, World Labor Report, vol. 2 (1985). See also, “ILO Conference Invites Governments, Employers & Workers to Strengthen Action Against Apartheid,” Press Release, June 20, 1985.

30 See, International Covenant on Civil and Political Rights, U.N.G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc A/6316 (1967), reprinted in 6 I.L.M. 368 (1967). Indeed, there is a sense in which the Universal Declaration and the Covenant on Civil and Political Rights are superior to, e.g., the United States Constitution as rights-granting textual instruments, since the Constitution itself has comparatively little “rights language” explicitly in it. For example, there is no statement of the right to be free from torture in the Constitution. Nor does the Constitution explicitly mention (as does the International Covenant) the right to travel, the presumption of innocence, the right to marry a person of one’s choice.

31 See, P. Alston, “The United Nations and the Elliptical Notion of the Universality of Human Rights,” in Is Universality in Jeopardy? (1987).

32 Pollis & Schwab, Human Rights: Cultural and Ideological Perspectives, (1979), at p. 14.

33 This important point is made in Alston, note 31, supra.

34 The received view has origins in Roman Law, as understood by early Italian Renaissance scholars, the glossators. This traditional model persists into modern jurisprudence. An idea stressed by Julian—that the incompleteness of written law means there will always be cases of uncertain application—occupies a central place in the work of Pound (See R. Pound, Introduction to the Philosophy of Law, (1922)) and Hart (See H. L. A. Hart, The Concept of Law, (1961)).

According to Julian, textual incompleteness stems from: lack of human invention, the flux of human affairs, the plethora of ways people commit malfeasances. See R. Simonds, Reflections on the Jurisprudence of the Glossators, (1973). Reasons cannot be provided for everything that predecessors have decreed. If a rule sets the period for adverse possession at three years, why not expand it to four years, or reduce it to two? In Julian’s words,

A reason should be such as to be general and necessary and wherever the reason applies, so should the law… but such a reason cannot always be given, as this text says, because sometimes the reason applies and not the law… and [sometimes] on the other hand the law applies and not the reason. Ibid., at p. 7.

In sum, reasons stated in the text may not apply. Nevertheless, some sort of reason will apply, albeit in the form of custom or convention. But if a rule lacks an explicit reason, or if the requisite general and necessary reasons cannot be given, Julian counsels against speculating about the law. As he warns, “otherwise, many things in these law’s which are certain will be subverted.” Ibid., at p. 7. When meanings expressed in the text have always been comprehended in a particular way, the shared understanding establishes a convention which has the force of law. Customary meaning carries interpretive priority. As the jurist Paul writes in a gloss, “what has always had a certain interpretation is to be changed as little as possible.” Ibid., at p. 7.

Concerning textual vagueness or ambiguity, the glossators look to the intent of the writer, which would otherwise be irrelevant. A question arises whether customary meanings, normally dispositive when the language is clear, are validated since they manifest the best evidence of the writer’s intent. Some glossators suggest that conventional meanings are legitimated in this way, and that such meanings are to be jettisoned only if it is clear that the author so intended. Ibid., at p. 7. Justinian’s Corpus Juris Civilis repeatedly prefers intent to literal meaning when they conflict.

35 See. R. Dworkin, Laws Empire, (1986) at p. 420. Dworkin is referring (though he omits from his references the exact citation) to Habermas’ discussion at p. 134 of The Theory of Communicative Action I (T. McCarthy trans., 1984). In Dworkin’s words: “Habermas makes the crucial observation (which points in the direction of constructive interpretation) that interpretation supposes that the author could learn from the interpreter.” Ibid.

36 R. Dworkin, Law’s Empire, (1986), at p. 50.

37 Ibid., at p. 51.

38 Ibid., at p. 56.

39 Ibid., at p. 338.

40 See, Dworkin, Law’s Empire, at pp. 313–54.

41 An example of such a situation is discussed in The Scapegoat. Rene Girard ponders problems in interpreting “texts of persecution,” such as Machaut’s Judgment of the King of Navarre. In this fourteenth century poem, Machaut writes that Jews were massacred because they poisoned rivers, which action, it was thought, was responsible for making surrounding populations ill. We now know that the Black Plague was the culprit. Consequently, we conclude the Jews were scapegoats—victims of a false persecution. Despite our modern conviction that the poem embodies this falsehood, we do not revert to complete skepticism and reject the text in toto. Instead, we find within the erroneous text evidence that Jews were scapegoats. In effect, the text documents false stereotypes of Jews. The greater the falsehood expressed by the text, the greater our conviction that the persecution occurred.

An interpretation of such a text entails recognizing a partly accurate and a partly false perspective of the author-”persecutor.” The task for the interpreter is to give the best reading of the text. This requires appeal to principles not explicitly in the text. The “scapegoat” theme—that Jews were scapegoats for the Black Plague, and consequently massacred—actually contradicts the sense Machaut intended.

Girard explains this style of interpretation by distinguishing thematic (positivist) criticism from structual criticism. In thematic reading, a theme is identified explicitly in the text. For structural literary critics, however, themes need not be explicit. A theme may be uncovered as a hidden principle of, though not in, the text. On the basis of this distinction, Girard regrets that, for positivists, “the concept of a structural principle that is absent from the text it structures would have seemed epistemologically incomprehensible….” The Scapegoat, Y. Freccero, trans. (1986), at p. 121.

42 770 F.2d 202 (D.C. Cir., 1985), at p. 206.

43 Jürgen Habermas’ critique of parapraxes, or errors in textual exegesis, are especially germane to this problem. Habermas wants a way of engendering correct understanding of faulty texts which simultaneously express and conceal self-deceptions of their authors. See, J. Habermas, Knowledge and Human Interests, (1971), J. Shapiro (trans.), at p. 219.

44 Habermas builds an analysis around Dilthey, Gadamer and Freud. Dilthey introduced, in the context of social science, the problem of verstehen. The understanding captured by verstehen is when one comprehends alongside the subject of study (say, members of a foreign culture with whom one is doing business). One understands traditions and social norms from the “inside,” rather than as a detached observer. Dilthey extended this notion to historical interpretation, and claimed that a type of transcultural verstehen was attainable in the form of an historical consciousness. Superior scholars are in principle capable of achieving epi-temporal historical interpretation. See, H. P. Rickman, Meaning in History: Dilthey’s Thought on History and Society, (1961).

This view was attacked by Gadamer, who doubted whether a non-contextualized, or non-prejudicial historical consciousness was possible. For Gadamer, the goal is to comprehend how one’s vantage point is affected by the phenomena one interprets. See, H. G. Gadamer, Truth and Method, (1979); see also, Dworkin, Law’s Empire, at p. 420.

In The Theory of Communicative Action Habermas takes issue with verstehen on the grounds that it has a uni-directional bias. The interpreter is not held hostage by specific intentions. Rather, the communicative channel between author and interpreter is such that the author could, ideally, learn something from the interpreting agent. Habermas’ position is expressed in the following passage:

… Gadamer gives the interpretive model of Verstehen a peculiarly one-sided twist. If in the performative attitude of virtual participants in conversation we start with the idea that an author’s utterance has the presumption of rationality, we not only admit the possibility that we may learn something from it, we also take into account the possibility that the author could learn from us. Gadamer remains bound to the experience of the philologist who deals with classical tests: The classic is that which stands up in the face of historical criticism.’ The knowledge embodied in the text is, Gadamer believes, fundamentally superior to the interpreter’s.

J. Habermas, The Theory of Communicative Action, (1984), T. McCarthy (trans.), at p. 134.

The interpretive situtation of the philologist in this passage is treated separately by Habermas in Knowledge and Human Interests. There he develops his model of psychoanalytic interpretation, in which the notion of parapraxes becomes crucial.

Habermas distinguishes Dilthey’s philological approach from Freud’s psychoanalytical methods. For Dilthey, critical methodological interpretation is restricted to a language in which conscious intentions are expressed. Pertinent meanings are embodied in the text itself. Philology studies languages in which tradition is crystallized linguistically. For Dilthey the autobiography represents a “life history”—a story held together by an ego identity understood in terms of symbolic structures.

This ego identity may be represented “vertically,” composed of cumulative experiences of the individual. The big question is how these experiences are to be interpreted. Dilthey’s answer is that “[i]n every moment all past events of a life history are subjected to the force of retrospective interpretation. The interpretive framework of each present retrospection is determined by an anticipated future.” J. Habermas, Knowledge and Human Interests, at p. 152.

Further, Dilthey contends that individual memory is selective as to what is significant in the overall unity of one’s life. Is the true significance of a person’s life locked in her own interpretations? Not necessarily, since the meanings have an additional intersubjective dimension, which may be represented “horizontally.” The intersubjective validity of symbolic meanings are a precondition of communication. As Habermas states,

Language is the ground of intersubjectivity, and every person must already have set foot on it before he can objectivate himself in his first expression of life, whether in words, attitudes, or actions. Ibid., at p. 157.

Thus, the vertical dimension of ego identity and the horizontal dimension of public expression become complementary. Ibid., at p. 158.

When the philological approach is abandoned for the psychoanalytical model a new consideration crops up. Since memory is often unreliable and confused, it is necessary to “reconstruct” what the patient is reporting. “The first condition of the construction of the historical world is thus the representation of mankind’s confused and in many ways corrupted memories of itself through critique correlated with interpretation.” Ibid., at p. 215.

Habermas finds Freudian psychoanalysis “concerned with those connections of symbols in which a subject is deceived about itself.” Ibid., at p. 218. The psychoanalytic model of interpretation, therefore, holds promise for interpretations of texts which reflect “self-deceptions” of the author. Freud dubbed this region the “internal foreign territory” of the self. Alienation exists since a meaning “belongs to” the subject but remains inaccessible. Ibid., at p. 217. Psychoanalysis provides a method for self-reflection which transcends brute understanding of symbolic structures per se. Self-reflective understanding, or “depth hermeneutics,” breaks into “foreign territory” correcting distorted meanings embedded in symbolic structures.

Since there is a “horizontal” aspect, Habermas seeks “pure communicative action” in which “all habitual interactions and all interpretations relevant to life conduct are accessible at all times.” Ibid., at p. 232. In intersubjective communication, the self-reflective method yields hope for an “unrestricted ordinary language of uncompelled and public communication.” Ibid.

The “censorship” relected in the patient’s self-deceptions have their counterpart in repressive state censorship. Thus, both individual and social pathologies are corrigible by releasing language and communication from structural deformations. Distortions of repressed communication show up as a person’s delusions or neuroses. On the social and cultural level the pathology of distorted communication is reflected in what Freud terms “illusions.” In this connection Habermas finds in Freud’s The Future of an Illusion a challenge to achieve “an organization of social relations according to the principle that the validity of every norm of political consequence be made dependent on a consensus arrived at in communication free from domination.” Ibid., at p. 284.

45 R. Dworkin, Law’s Empire, at p. 420; J. Habermas, The Theory of Communicative Action I, at p. 134.

46 See, e.g., H. Gross, “Privacy and Autonomy,” in J. Feinberg & H. Gross, Philosophy of Law, (1987); D. A. J. Richards, Toleration and the Constitution, (1986), at pp. 231–81.

47 381 U.S. 479 (1965).

48 410 U.S. 113 (1973).

49 630 F.2d 876 (2d Cir. 1980), remanded, 577 F. Supp. 860.

50 163 U.S. 537, 16 S.Ct. 1138 (1896).

51 347 U.S. 483, 74 S.Ct. 686 (1954).

52 438 U.S. 265, 98 S.Ct. 2733 (1978).

53 See, R. Dworkin, Law’s Empire, supra, at pp. 381–99.

54 See, Perelman, “Law, Philosophy and Argumentation,” in Justice, Law and Argumentation: Essays on Moral and Legal Reasoning, (1980), at p. 161.

55 See A. Aarnio, The Rational as Reasonable, (1987), at pp. 222–25.

56 The view that corporations have a restricted economic role which limits their moral obligations relative to other moral agents (nation-states and individuals) is articulated in T. Donaldson, The Ethics of International Business, (1989). I have criticized the importance of the distinction in connection with the obligation of corporations to provide humanitarian assistance in “Global Distributive Justice and the Corporate Duty to Aid,” Journal of Business Ethics, vol. 12 (1993), pp. 547–551.

57 See, T. Donaldson, The Ethics of International Business, at pp. 81–86.

58 Some arguments in this article were initially set out in an abbreviated fashion in “Internationalizing CLS: Reflections on the Moral and Legal Obligations of Multinational Enterprises,” a principal paper for the AMINTAPHIL conference “Radical Critiques of the Law,” Allentown, Pennsylvania, October 22–24, 1992.