A Corporative Theory of Corporate Law and Governance

ABSTRACT This book investigates how a corporation, as a legal entity with certain specific attributes, but lacking human form, can take action in the real world of human activity. It contends that a corporation must take such action through, and by means of, an organization, both inside and outside its corporate legal limits, consisting of real individual persons and groups of persons. The corporation thus presents itself both as a legal entity assuming the legal form of a corporation and as a social entity taking the form of an organization. One form overlays the other. Those with whom it has legal relations, its legal counterparties, are also, in respect of its organization, participants in that organization. This theory of, or perspective on, the corporation and its governance is explicated here as corporative. The corporation comes into being, is situated, participates, and is embedded, in a complex sociopolitical-economic environment, which includes its legal counterparties and organizational participants. In addition to shareholders, they include employees, customers, suppliers, creditors, local, regional, and national communities, polities and governments, and non-governmental and other organizations, including those whose objectives include the environment, sustainability, governance, and social responsibility. Despite arguments from advocates of shareholder primacy and maximizing shareholder value, neither the corporation nor any of its participants, including shareholders, have any single objective. Instead, such participants have a variety of objectives which may be consistent to varying degrees with those of each other and with those of the corporation. However, the prosperity and well-being of corporations and their organizational participants, and the groups and other organizations of which organizational participants are members, at a macro-level, are, in many ways, interdependent. Today, prompted by various concerns (including the environment, sustainability, technology, changes in employment and other economic engagement patterns, and increasing income disparities), corporations, industry groups and NGOs, like governments, educational institutions, and other organizations, are facing challenges to the continued viability of contemporary capitalism and of its paradigmatic vehicle, the corporation. Addressing these challenges requires that corporations be considered in the context of the complex socio-political-economic environment in which they are situated and of which they partake. Drawing on analysis of corporate statutes and other relevant law, and historical, social, political, economic, organizational, business, and other theory, information and analysis, this work elucidates the corporative theory of, or perspective on, the corporation. It outlines how this might be applied in analyzing the corporation and its governance from a legal perspective. It illustrates how organizational participants may, and do, influence the behaviour of the relevant corporations; and how corporations may, and do, influence the behaviour of organizational participants. This contributes to understanding how such relationships may be employed, not only to save capitalism and the corporation, but to advance common interests in human prosperity, happiness, meaning, and even simple sustenance.