Whenever I talked about markets, poverty and wealth, I always make one point which invariably disturbs pupils: if you want to know why some countries have successfully transitioned from widespread poverty to material affluence, and many others haven’t, the principle of law is far more important than democracy.
Part of the stunned response flows from how the word”democracy” functions now as a synonym for everything nice and wonderful. After, howeverwe get beyond the inevitable”Are you saying that you’re against flames!?!” Protestations, followed by my assurance that I favor liberal constitutionalism rooted in natural law assumptions (quite a few students decide up on the nuance), the more the students understand that while things such as universal suffrage have their very own value, they have little to do with economic development per se. Additionally, as students grasp the significance of rule of law, so they gradually comprehend how countries with similar starting points concerning demographics, natural resources, geography, faith, society, etc., can wind up in quite different financial places.
Rule of law enforcement centrality for loose, just, and economically prosperous societies is now the topic of Nadia E. Nedzel’s The Rule of Law, Economic Development, and Corporate Governance (2020). Her strategy is to engage in comparative analysis of 2 Western legal traditions. Broadly speaking, one is the Anglo-American concept of”principle of law.” The other is the continental European tradition of exactly what she calls”principle by law”–rechtsstaat. Though it has many of the same institutional attributes, rule “emphasizes equality and community over liberty, and therefore the law should avoid conflict, not merely handle it”
Nedzel proceeds to illustrate different ways in which these systems shape economic life generally and, more specifically, the lawful treatment of businesses. That last topic, Nedzel shows, has direct consequences for some thoughts that she thinks has great potential to undercut the roots of Western wealth. This worries stakeholder theory: the claim that any company has a responsibility to those who have a stake in the business–employees, customers, local communities, suppliers, the environment, future and past generations, etc.–besides those that actually own or have invested capital in the business.
In Nedzel’s perspective, if stakeholder theory becomes cemented into Western legal systems, the damage to companies and market economies will be substantial. Resisting that fashion, she suggests, requires those countries forged at the Anglo-American principle of law heritage to hold fast and not adopt stakeholder concepts of the purpose of business currently being advanced in civil law jurisdictions.
Common v. Civil
Nedzel is a distinguished scholar of law who teaches in Louisiana. Her focus issues because Louisiana is the only authority in the United States where private law was greatly shaped by the legacies of French and Spanish colonial authorized codes. These influences have certainly been merged with more clearly common law ideas and state laws. But the French and Spanish history means that Louisianan judges, attorneys, and law professors are particularly conducive to the joys of European civil law rules and how they differ from common law enforcement.
This is surely true in Nedzel’s case, but she nutritional supplements this knowledge of current arrangements with significant historic appreciation of the way common law and civil law systems emerged over several centuries. Here is the focus of Nedzel’s opening chapters. These lay out key points of development such as the Norman Conquest, Magna Carta, and the Glorious Revolution which helped make sure that England took a corresponding path to that which was occurring on the opposite side of the Channel.
When combined with the influence of figures like Sir Edward Coke, common law’s bottom-up emphasis on custom, tradition and expertise developed to a predilection for both individualism and limited government. This differed greatly in the type of legal systems which became dominant during continental Europe. Quite different forces were in the office in these countries.
Amongst others, these comprise a revived attention to Roman law; the development of political absolutism; the sway of Cartesian doctrine; Rousseauian General Will notions; the French Revolution; the subsequent implementation of the Code Napoléon from France and other countries; and the evolution of somewhat authoritarian conceptions of both rechtsstaat where the only constraint upon the nation has been exactly what it chose to inflict on itself. The end-result was authorized codes where a type of hard-communitarianism, as opposed to”the Rights of Englishmen” stressed from the Anglo-American planet, became the most interpretive frame deployed by those exercising political and legal jurisdiction.
An American Legal Conflict
The Anglo-American and continental European customs have not been in splendid isolation from one another. There’s no lack of judges or authorized philosophers who pay attention to changes in other authorities. Nedzel exemplifies that, as time passes, there were many different and often successful efforts to import rechtsstaat-like ideas into America via law schools, laws, and judicial rulings.
She describes Hart’s job as playing a significant role in advancing what amounted to a social democratic notion of government and law. Yet despite these resistance, many of Hart’s thoughts entered America’s political and legal bloodstream. This occurred precisely as a slew of innovative legislation was flowing out of Washington D.C. and several state capitols.
Nedzel presents America’s current legal landscape as one where two Western legal traditions (“rule of law” versus”rule through law”) exist in an uncomfortable tension that sometimes breaks out into conflict. That has several consequences, however, her focus is determined by the consequences of economic development. Her argument, which is not a new one, is that many countries nearer to the Anglo-American principle of law tradition generally outperform in economical terms those countries who have followed other lawful avenues.
An emphasis on equilibrium and maintaining levels of employment, for instance, exacts a price concerning organizational dynamism, not by Favorable risk-taking and entrepreneurship.The correlation and causation involving rule of law and purposeful financial development is not tough to show. It is, however, at this juncture which Nedzel’s chief target looms into view. Her emptiness (and herein lies her novel’s most original section ) is that stakeholder theory reinforces continental European principle through law inclinations and also vice-versa, not because of shared hard-communitarian foundations.
According to Nedzel, corporate law in common law jurisdictions is very different from that found in civil law countries. The gaps do not, she stresses, flow from corresponding challenges. Business problems (and business malfeasance) tend to have universal characteristics. Instead she believes the ways that corporate law in the usa now retains a shareholder focus followed by tender law provisions which encourage sound business leadership and direction, often through industry standards and rules of conduct.
This contrasts greatly with civil law authorities. The weight given to hard-communitarian worries, Nedzel retains, translates to heavy-handed small business regulation from the country. In most European countries, this extends as far as mandating chairs on boards of supervisors for representatives of banks, governments, and business staff (invariably union officials).
Such goals undermine the capacity of corporations to make wealth. An emphasis on equilibrium and maintaining levels of employment, for instance, exacts a price concerning organizational dynamism, not by excruciating risk-taking and entrepreneurship. These habits definitely upset established structures and routines of behaviour within businesses and eventually generate change and often rapid turnover in employment markets. Without such adjustments, though, a business will become complacent and uncompetitive. Finally it will vanish, along with the tasks once supplied by the enterprise. Likewise, if boards of supervisors aren’t focused on delivering shareholder value because gain is considered only one of several business goals, a decrease in earnings is sure to follow.
These principles help clarify the weaker economic performance of several businesses in civil law jurisdictions in contrast to those companies located mostly in the Anglo-American sphere. Corporate law in Anglo-American systems isn’t without its problems. But Nedzel asserts that the (current ) shareholder focus helps incentivize the flexibility and innovation which is crucial to creating the prosperity that rewards investors but also, albeit unwittingly, countless those who have never possessed a share in their lives.
Herein lies Nedzel’s core difficulty with the flirtation with stakeholder theory by most American companies and corporations. At present, a lot of the romance is rhetorical and, it seems, primarily a public relations exercise designed to appease the awakened and assorted left-leaning groups. What the author dreads (rightly) is that countries such as America, Britain, and Australia will begin drifting down the path of several civil law jurisdictions which have started mandating stakeholder-oriented notions via national laws and European Union directives. Not only will this facilitate serious accountability and transparency problems with effectively creating boards of supervisors accountable to numerous stakeholders; additionally, it, Nedzel builds, lead to diminished economic operation in these countries which have hitherto adhered to Anglo-American principle of regulation expectations.
Neither a person focus nor stakeholder theory, Nedzel warns, will eliminate corporate wrongdoing. So long as people are human, some individuals will behave badly in business. To the extent that stakeholder theory draws upon hard-communitarian principles which it shares continental European principle through law versions, it risks undermining already fragile commitments to principle of law in the usa and elsewhere. That is just one more reason to shore up the priority of shareholder interests during corporate America. For once principle of law is gone, the route to its restoration is a long and difficult one indeed.