The Purposive Transformation of Corporate Law
Forthcoming, American Journal of Comparative Law
63 Pages Posted: 2 Apr 2020 Last revised: 17 Nov 2021
Date Written: March 31, 2019
What is the purpose of a corporation? This fundamental question is as old as corporate law itself and traditionally it is asked with reference to the ultimate beneficiaries of a corporation’s activities. Modern management theory and the current technology-driven transformation of the economy, however, have breathed new life into the question about corporate purpose. Here, purpose is understood as an animated mission-purpose articulation of the reason for a corporation’s existence; an aspirational idea about its existence that has the capacity to bond internal and external stakeholders to the company, inspiring innovation, productivity and customer loyalty. This understanding of corporate purpose offers a pathway to a more inclusive and interconnected form of modern capitalism.
This approach to purpose is now gaining regulatory traction. In December 2018, the United Kingdom’s “comply or explain” Corporate Governance Code adopted a provision which provides that “the board should establish the company’s purpose.” This article takes the UK’s regulatory adoption of mission-purpose as a platform from which we can explore the economic and social benefits of purposeful companies and the legal and non-legal conditions that are necessary to support and nurture such companies. The article argues that in the absence of purposeful shareholders corporate law must enable companies to construct a zone of insulation which protects its purpose—whatever it may be—from the pressures of immediate shareholder preferences which can compromise mission-purpose. It argues that in jurisdictions where law and market practice prevents the construction of such a zone of insulation, the economic and social benefits of purposeful companies will be unavailable, as mission-purpose disintegrates into the prosaic or a mere marketing device. This claim generates several theoretical and empirical objections, which the article considers and rejects.
Keywords: Corporate Law, Law and Economics
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