Litigation and Embedded Legality : a Communicative Model of Polycentric Evolution for Business and Human Rights

Abstract

Maturation of the business and human rights discourse has been arrested by a protracted stalemate over the question of legality. Whether or not an international legal regime is desirable for the regulation of business and human rights, its development is exceptionally unlikely in the foreseeable future. The central argument of this work is that there remains, however, a formative role to be played by legal reasoning, legal concepts and legal institutions in the development of polycentric and hybrid regulatory systems. This claim is demonstrated by constructing a communicative model of transnational human rights litigation against corporations. Two communicative functions of litigation are explored. Firstly, it is argued that by articulating normative standards, courts lend clarity and authority to complex norms, and reference to that authority by other discursive actors embeds the legal framing of norms in the constitutive rules regulatory systems. Secondly, by iterating network links, litigation promotes strategic and communicative connections between actors, fora for normative contest, and regulatory mechanisms, linking the business and human rights discourse up with legal apparati and imposing distinct challenges to the legal profession. Together, by framing norms and expanding networks, litigation embeds legality in a discourse actively engaged in the construction of regulatory arrangements. Embedded legality does not determine the content of regulation, but courts have institutional and procedural advantages as fora for arguing about content. While embedding legality does not equate regulatory systems with legal regimes, it does satisfy the compliance criteria of several legal theorists, thereby transcending the dichotomy of voluntarism vs legal sanctions. The model concludes by suggesting that litigation ought to be promoted not only as a mechanism for punishing ‘determined laggards’ but more importantly for its long term influence on the way in which norms and identities within the business and human rights discourse are approached, understood and enacted. This strategy is especially imperative for the human rights movement, which has not yet managed to adapt coherently or effectively to the challenges posed by a global market.