Worthington, Michelle Marie
Description
This Thesis extends Sir Isaiah Berlin’s ‘value pluralism’
to argue that the for-profit corporation functions as a powerful,
constructed ethical agent. While the prevailing view is that
corporate decision-making allows for the balancing of a range of
different, potentially competing interests, this Thesis argues
that the corporation’s ethical agency is structured around a
single, unifying value, namely, the corporation’s own financial
self-interest. On this...[Show more] view, the corporation’s decision-making
is constrained: it is incapable of a) conceiving of the world in
anything other than financial terms or b) other-regarding
behaviour of any kind. The pervasive financial self-interest
evident in the corporation’s constructed ethical agency helps
to explain both the remarkable success of the corporate form, and
its pronounced anti-social tendencies.
This Thesis argues for a reconfiguration of the corporation, and
with it, corporate ethical agency. In particular, it argues that
the nature and scope of corporate influence necessitates imbuing
the corporation with more ‘pluralist’ sensibilities. Not only
should the corporation be capable of balancing a range of
different interests in its decision-making, it should be capable
of subordinating its own interests to those of the broader
community where appropriate. Using Berlin’s value pluralism as
a guide, this Thesis proposes a suite of law reforms aimed at
facilitating contextualised, flexible, and other-regarding
decision-making on the part of the corporation. These proposed
reforms are:
– replacing the existing duty to act ‘bona fide and the best
interests of the corporation’ with a new duty to ‘sustain the
business of the corporation as a going concern’;
– providing a statutory definition of ‘proper purpose’ with
a view to both expanding the concept, and ensuring that it
functions as the ‘lodestar’ for directorial decision-making.
With respect to the proposed expansion, the concept of proper
purpose should be made to include a good faith requirement, and
should also allow directors to address legitimate social and
environmental issues;
– providing express statutory permission for corporations to
engage in profit-sacrificing behaviour;
– mandating integrated reporting mechanisms for corporations,
with a view to using the data collected to inform the development
of a ratings system for corporate conduct; and
– legislating for advisory shareholder resolutions.
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