The Managerial Constitution: The Convergence of Constitutional and Corporate Governance Models

54 Pages Posted: 4 Jul 2013 Last revised: 22 Jul 2013

See all articles by Carlos Portugal Gouvêa

Carlos Portugal Gouvêa

University of Sao Paulo - Faculdade de Direito

Date Written: July 2, 2013

Abstract

This paper proposes the concept of the “Managerial Constitution”, which advocates the convergence between constitutional and corporate governance models. Such concept is based on the interpretation of certain features of the Brazilian Constitution enacted in 1988 that may serve as a model for modern democracies in developing countries. According to such model, modern constitutions should be sufficiently detailed to drive public policy and short-term legislative process in specific areas. Under this model, members of the executive, legislative and judiciary branches become less interpreters of principles inscribed in the Constitution and more agents of public policies outlined in the Constitution itself. This model opposes two dominant constitutional models. First, it opposes the model of the constitution as an “instrument of government”, characterized by a constitution with a limited number of provisions focused on broad principles and an outline of the government structure. Another characteristic of this model would be that legislative process could hardly change the constitution. Secondly, it opposes the model of the constitution as an “instrument of social engineering”, also referred to as the “programmatic constitution”. Under this model, constitutions would provide blueprints for the whole organization of society. By contrast, a “Managerial Constitution” provides for a more straightforward model, with clear rules to implement public policies. Such model is inspired by current developments in corporate governance of transnational modern corporations, which seem to demonstrate a greater level of tolerance to means of direct democracy in the governance of the corporation than constitutional theory would accept in the governance of the State. According to such model, constitutions shall be adaptable to changes in the domestic and international institutional environments and responsive to the interests of their citizens, allowing for mechanisms in which their citizens can chance the constitution directly.

Keywords: corporate governance, constitutional law, direct democracy, constitutional amendment, comparative constitutional law, social and economic rights, public policy

JEL Classification: G3, G38, G30, K22, N46, N50

Suggested Citation

Portugal Gouvêa, Carlos, The Managerial Constitution: The Convergence of Constitutional and Corporate Governance Models (July 2, 2013). Available at SSRN: https://ssrn.com/abstract=2288315 or http://dx.doi.org/10.2139/ssrn.2288315

Carlos Portugal Gouvêa (Contact Author)

University of Sao Paulo - Faculdade de Direito ( email )

Largo São Francisco, 95 Prédio Anexo
São Paulo, São Paulo 01005-010
Brazil

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