2022 Post Covid 19 Narrative: Sustainable Ethical Relationship Of Laws To Businesses

By Author: premkumar nadarajan.
Total Articles: 26
Comment this article

To ensure that laws that govern businesses are best or equitable, the main question that needs answering is ‘what is that makes law into good law for the business context?’ It is necessary at this juncture to limit the scope of argument, lest it is impossible to discuss all ramification within a succinct assignment; that the limits be set only to tarry along the common law. The origins of common law , being rooted in Roman Law and the medieval writ of system of English Law presented law as a series of individual problems or disputes to be given specific answers .Laws are connected to business or businesses in various contexts; such as rules of civil liability for accidental and/or intentional infringements of other people’s liberty and property; legal rules regulating agreements that the court will enforce; and rules governing relationships between owners or original holders of right regarding property and tenants or users who pay monies or other form/s of consideration for legal use of those rights. With regard to civil liability, primarily there are two schools of thought: one grounded in the economic analysis of ...
... law that sees law about maintaining efficiency, and the second emphasizing correctional justice aspects i.e. that law is all about wrongdoers compensating victims for the damage the wrongdoers caused. The same arguments described for civil liability; namely the two schools of thought are also applicable with regard to contractual business disputes. There is an idea in legal theory with regard to property that private property (in other words privately owned businesses) has its origin and form in each person and also in his or her own labour. It is also common to see property referred to, not as an isolated right that stands on its own, but as a “bundle of straws” (bundle of rights, a series of claim-rights and duties generally associated with ownership, but where certain aspects may be subject to alteration in different contexts, depending on the public interests. In light of new laws coming into the picture of the realm of businesses, it is all the more necessary to suggest or to remind the reader of a potent and better model of laws to govern businesses.

It is necessary to go beyond the black letter of the law when dealing with businesses, keeping in mind that businesses work or deal with daily or practical events which are often neither clearly black or white but in grey areas. To go beyond the black letter, we must look at the “principles” behind the law and not just the legal rules. Ronald Dworkin‘s idea applied to the business scenario identifies law as an “unfolding narrative”. Using the idea of constructive interpretation, Dworkin submits that the proper approach to interpretation of what is good for businesses in terms of law; the purpose being to constrain or justify governmental or ruling power over businesses in a sustainable and equitable manner, by assigning a distinctive value or purpose to the object of each of the businesses being looked at. If asked say “What is the law regarding economic recovery for lack of performance, with regard to small and medium enterprises (SMEs’), it is quite possible that the lawyer one asks for an answer to, will not be able to offer an authoritative source which speaks directly to the specific problem posed; that is, the question may be, unsettled in the laws of that jurisdiction. Of course, the lawyer may be able to point out to certain statutes that have been passed that are relevant ( ex: in Malaysia, the Co-Operative Societies Act ,last amended in 2007) and to certain court decisions that have been made by the Malaysia courts at various levels on related matters and perhaps even to the writing of legal jurists suggesting that future decisions on this question come out one way rather than the other , but it often is the fact that none of these items directly and conclusively answer the question/s posed.
For Dworkin, the person who looks for an answer from the “law” must go through a certain kind of reasoning process called an act of “interpretation”; in order to derive an answer from the various materials. Before one can dismiss the above statements as mere legal semantics, there is an important argument as to why Dworkin’s idea can be justified to be important in the business world. The business arena on practical terms, especially on a day to day basis; Rules , or in Dworkin’s terms, regulations, being more amenable and flexible in nature to deliberate change or repeal, by legislation would not do justice to businesses who trust governmental actions to protect them in the long term. The courts being the last bastion of justice in a Commonwealth legal system according to the rule of law doctrine would “interpret” the relevant rules of the day in light of “principles” which transcend, by virtue loftiness, stature and splendor, anybody of rules for that matter, because of the former’s own inherent stability, something that the latter does not enjoy.
Critics of this idea, for example Hart who argue that laws should not, as a rule, be interpretive or principle based, but should be rule – based; namely there must be at the center of the “room” of business ( assuming for a moment businesses can be pigeon-holed as such ) a substantive, detailed and interesting descriptive theory of law. Hart also states that even if the “sense” of legal propositions in most if not all legal systems is interpretive/evaluative, it does not follow that a descriptive set of rules or theory of rules as such applicable to the subject matter concerned ( in this context, the subject matter being businesses ) need similarly be interpretive/evaluative . It is submitted that there is rational scope for application of Dworkin’s line of thought , because the law is or would be, in the hands of an interpreter, be it a court or in all likelihood, an arbitrator or Ombudsman; highly relevant and practical in the business world arena to “interpret’ the set of given laws to a particular practical business scenario, providing justice especially in “hard cases” using principles that by its inherent nature transcend man-made laws ( which can change from one season to another , be it local or international laws). There is also a safety net in Dworkin’s approach; because of the advocacy for a solution within the legal framework; otherwise the law’s purview may lose out to its competitors, such as amoral social justice or political economics. This is especially important where there may be more than “one right answer”; namely in “hard cases”. An example can be given for example in businesses that deal or trade in toxic wastes; on one hand such businesses could rake in a lot of monies , good in pure fiscal terms of the economy, on the other hand the health implications to society could be irreparable. In such a situation, a judge in such business cases must exercise the best decision or discretion by looking at the coherence of the legal system as a whole and the decision which promoted such coherence rather than the one which detracts from it, should be preferred.
In terms of reward and punishment to the businesses concerned, and the victims who have or may have suffered from it, the judge would in light of the local laws , exercise “legislative integrity” ; namely to promote an interpretation which will show the decision to be parallel to and not in tangent with legislative integrity and intent; and to exercise “adjudicative integrity” as well, where judges would need to have a singularly principled lens of the various set/s of rules governing the business matter and if this is done or being done, such laws are being sustainably exercised and applied to , in the “best light” for businesses .

By exercising the approach stated above, there would be a sustainable and enviable relationship of laws to businesses . Machiavelli should not be allowed to have the last word; his view of human life or in this context, the business social applicability; as a play where only the props change. Machiavelli was of the opinion that present circumstances can and should be interpreted in light of previous circumstances, as a rule should be frowned upon. Individual interests which are radically opposed to the common good would in light of the arguments enunciated above, be removed or at least curbed substantially if the “right answer” thesis” and “interpretive reasoning” when applied to businesses are adhered to.

lecturer at a private learning institution ( UTAR).