Environmental Engineering Reference
In-Depth Information
of justice in this distinctive context. Expectations that the fair distribution
of value can be understood only in monetary terms, that a hierarchical
structure of representation can be assumed in negotiations, that property
rights can be conceived in exclusive, individualistic terms, and that the
“worthy” community of justice can be simply defi ned, are all confounded
by an approach to sharing benefi t that risks fundamentally misrecognizing
the cultural foundations of the San as an indigenous group. Williams and
Mawdsley (2006: 669) make a similar point in arguing that
regardless of the theoretical lens through which concepts of injustice are viewed
. . . a close examination of differences in the context in which struggles for
environmental justice are located is required. There has to be critical engagement
with these differences—including those of history, culture, state structure, and
public discourse—if environmental justice is not to fall in to the trap of staying
within a world that is “thinly known.”
The parameters and hazards of this “trap” are all the more readily
exposed when, as in the case we have examined, an attempt is made to
embody justice within an essentially neoliberal international legislative
regime. When the presumptions and assumptions of this regime crash
against the situated particularities of its implementation and negotiation
it is hardly surprising that discontinuities in value and process are to be
found, although their intensity might vary from context to context. We
can therefore fi nish our discussion by considering what alternative legal
models for doing justice might be possible that are better able to embody
such diversity in context.
As we have established, the concept of environmental justice seeks to
ensure equity based on the participation of those affected in order
to produce outcomes that treat all affected groups fairly. According to
Shelton (2007), equity not only comports with notions of justice, equity
also relates to law in the sense of providing contextualized justice. In this
perspective, the relationship between justice and law should be explored
against the background of an understanding of the limits of positive law,
or indeed as a critique of the universal norms and values as embodied
in the spirit of the Enlightenment. Instead of embedding justice in a
dominant and abstract positivist legal discourse that ignores the politics
of power (Minda 1995), justice should be interpreted in terms of what
Lyotard (1984) calls complex narratives or local discourses of different
cultural and theoretical perspectives. Parallel to the arguments used by
scholars like Felix Cohen with respect to justice, postmodernist legal
scholars refute the concept of law as an autonomous, self-generating
activity because there can be no fi xed foundation on which to ground
