'Creabimus!' Creatively re-thinking the corporation and the social contract

Moncrieff, L. (2022) 'Creabimus!' Creatively re-thinking the corporation and the social contract. European Law Open, 1(SI 4), pp. 914-956. (doi: 10.1017/elo.2023.12)

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This article rethinks the corporation and ‘the social contract with business’ for the post-pandemic era. It uses a double historical orientation centred on the turbulence of the 1930s in Europe and America to insist on the company’s relationship with government, and to explore transformations in the social contract now needed to socialise and ecologise global business. One part of this history looks forward, from Adolf Berle’s modern corporation to the neoliberal corporation and regulatory governance. The article criticises a transformation of regulatory priorities in this era, closely analysing the shift to procedural mandates and questioning the corporate law tactic of ‘enlightening’ companies. The second part looks backwards to industrial modernism and Walter Rathenau in Germany in the interwar era, and also earlier (the late 1890s), to salvage a different understanding of the company and social contract, built around more constructivist visions of law, government and social consciousness. This part of the article is insistent about the metaphysical aspects of law and about developing law’s equalising powers around corporate impactfulness and injustice. It promotes ‘thought’ about collectivism (John Keynes) and the legal and regulatory recalibration that is needed to confront certain amassing challenges of the present. The article makes institutional transformation about shifting onto a different historical axis, whereby we might re-learn collectivist ambitions around the company that co-evolves with law and government, live to the public interest. It proposes a new social contract with business and a new regulatory modus involving law’s ‘Creabimus’ and ‘regulating dangerously’ for situations of widely adverse corporate impactfulness.

Item Type:Articles
Glasgow Author(s) Enlighten ID:Moncrieff, Dr Lilian
Authors: Moncrieff, L.
College/School:College of Social Sciences > School of Law
Journal Name:European Law Open
Publisher:Cambridge University Press
ISSN (Online):2752-6135
Published Online:14 April 2023
Copyright Holders:Copyright © 2023 The Author
First Published:First published in European Law Open 1(Special Issue 4): 914-956
Publisher Policy:Reproduced under a Creative Commons License

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