Abstract
Committees multiply in firms, whether stakeholder boards or committees, multi-stakeholder initiatives, ethics committees, or oversight boards. These arrangements aim to organise and legitimise the social and political activities of corporations. This article raises the question of the appropriate form of such governance structures. The examples above illustrate three possible ways of legitimising corporate quasi-public social and political activities: deliberation within the company, deliberation outside, and an approach we label corporate constitutionalism. While the first two models have been tested in practice and assessed in theory, the third one is comparatively more recent, both in practice and in theory. This article focuses on the latter model and asks whether corporate constitutionalism offers a suitable addition, or alternative, to deliberation (with or within firms) for legitimising corporate quasi-public social and political activities. It examines the respective merits of the three models and argues that a corporate constitutional court may mitigate some of the limits of deliberative practices alone. It argues the court is needed in weak regulatory environments, whether they are failing or inherently limited.
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Notes
See https://bangladeshaccord.org/. Accessed on May 27th, 2021.
For a presentation of different understandings of organisational legitimacy, pragmatic, epistemic, and moral, see Palazzo and Scherer (2006, pp. 72–73). This paper focuses on the third, normative, conception of legitimacy.
The power to determine others’ rights and duties is not only that of states; it is that of private parties in the state of nature, and perhaps also in a post-Westphalian world order. This is what “corporate sovereigns” do absent state supervision (Cordelli, 2020, pp. 72–74). This is an account of political legitimacy in the Kantian tradition: it is when private parties coerce one another, that is, interfere with each other’s external freedom that the question of political legitimacy arises. “Legitimate authority starts from the question of how private parties may treat each other.” (Ripstein, 2004, p. 6).
For a useful discussion of what counts normatively as a “public function”, see Cordelli (2020, pp. 25–29).
The idea that real institutions should mirror an ideal situation of deliberation has been criticised as too idealistic. For example, deliberation might not be a second best under non-ideal conditions including power asymmetries (see Vandamme, 2021, pp. 121–124, for a discussion). Today Habermasians rather understand the related notion of the ideal speech situation as what is logically presupposed in deliberative exchanges aiming to reach mutual understanding; it is the “counterfactual presuppositions assumed by participants in argumentation” (Habermas, 1996, p. 323).
The three expressions are used interchangeably in the remainder of the paper.
Scherer et al. (2013) hint at the idea of additional seats on boards, a possibility that is discussed by Sabadoz and Singer (2018, p. 203). Chiara Cordelli offers the more developed idea of a “deliberative polyarchy” locating the democratic decision-making in “deliberative bodies” and/or a “board of directors”, and one additional citizen jury, in the spirit of this proposal (2020, p. 274–275).
For a discussion of constitutionalism in the context of discussing workers’ rights, see Nien-he Hsieh (2005).
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Acknowledgements
I am grateful to the following people for comments and discussions offered on the arguments presented herein: Rutger Claassen, Chiara Cordelli, Auriane Lamine, Nicholas Vrousalis, Pierre-Etienne Vandamme, and especially my late colleague and friend Waheed Hussain who generously gave of his time to talk through the early arguments of this paper. I also wish to thank the participants of the Economic Ethics Network; the “Political theory of the corporation” MANCEPT Workshop; the EBEN France research seminar; the Mardis Intimes de la Chaire Hoover, Université Catholique de Louvain; the Society for Business Ethics Annual Meeting; and the members of the ANR project OSMosis. I am also grateful to the two anonymous referees of this journal for their very constructive comments and suggestions.
Funding
This work was supported by the French ANR project, “OSMOSIS” (project n°ANR-21-CE26-0024).
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Blanc, S. Deliberative Democracy and Corporate Constitutionalism: Considering Corporate Constitutional Courts. J Bus Ethics 188, 1–15 (2023). https://doi.org/10.1007/s10551-022-05206-x
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DOI: https://doi.org/10.1007/s10551-022-05206-x