The Corporation, Law and Capitalism

Baars, Grietje

doi:10.1163/9789004392861

Cited by 23 publications

(6 citation statements)

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“…Ultimately, (self-)regulation focused on corporate decision-making procedures -whether emphasising stakeholder input or rule of law norms -diverts attention from the inherently undemocratic nature of having 'a core global communication and information infrastructure…in the hands of a single profit-driven entity' (Pickard, 2022a, p17). This may be particularly true of the rule of law response, since the idealistic language of lawfulness and constitutional values is powerfully legitimising (Baars, 2019;Viljoen, 2021;Cowls et al, 2022). Discussing corporate accountability and regulation using terminology normally used for elected governments may misleadingly associate corporate platforms with democratic legitimacy and public-interest objectives (Griffin, 2021;Cowls et al, 2022), not only for the public but also in expert debates.…”

Section: Strengthening Corporate Powermentioning

confidence: 99%

Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability

Griffin

2023

Transnational Legal Theory

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Social media platforms trouble established ideas about the public/private divide. Due to their size, political influence, and abilities to regulate speech at scale, the largest platforms are often compared to governments. Consequently, their unaccountability to the public has prompted widespread concern. This article examines and critiques two related though distinct responses to this tension in academic and policy debates, here characterised as the multistakeholderist and rule of law responses. The multistakeholderist response aims to increase civil society's influence in platform governance through transparency, consultation and participation. The rule of law response -which is increasingly influential in Europe -extends the platform/state analogy to argue that platform governance should follow the same rule of law principles as public institutions.This article evaluates both responses' abilities to make social media platforms more democratically accountable, concluding that both are limited. Both reflect a 'tech exceptionalism' which understands social media companies as different from other companies, and therefore requiring special accountability mechanisms. The proposed solutions -subjecting platforms only to accountability from other private actors, or subjecting them to the same principles as statesoverlook the insights of legal realism and law and political economy: that corporate power is constituted by state regulation. Both responses aspire to strengthen democratic accountability without substantially changing the legal foundations for digital markets or the market structures they have produced, which is unlikely to succeed. Multistakeholderist initiatives will likely exacerbate unequal participation, since abilities to influence platforms through market pressure, public criticism and consultation are highly unequally distributed. Rule of law approaches implicitly approve vast concentrations of corporate power, provided they follow rule of law principleswhich are designed to constrain presumptively democratic states, not to ensure corporations act in the public interest.Instead, the article advocates reforms guided by an ideal of economic democracy, which emphasises democratic control over markets and aims to redistribute ownership and control of media and communications infrastructure. This suggests two areas for intervention: substantive legal constraints on corporate activities such as surveillance advertising, and reforms aiming to promote pluralism in online media by reducing market concentration and providing non-commercial or public-service digital infrastructure.

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Section: Strengthening Corporate Powermentioning

confidence: 99%

Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability

Griffin

2023

Transnational Legal Theory

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“…Rather, the feminist sociology of law analyses the role played by the law in assigning and consolidating gender roles and exclusion mechanisms (Elsuni, 2020) and what influence this has on the transformation of society towards emancipation. Marxist authors also criticise the limits of the law, explaining that social inequalities and capitalist structural principles, such as the pivotal role of the exchange of commodities and the guarantee of private property, cannot be effectively confronted by legal means (Baars, 2019;Mieville, 2006). In legal theory and critique, there has therefore always been a fundamental debate surrounding the emancipatory potential of juridically based strategies.…”

Section: Actor and Strategy Concepts In The Research Debatementioning

confidence: 99%

Legal Struggles: A Social Theory Perspective on Strategic Litigation and Legal Mobilisation

Buckel

Pichl

Vestena

2023

Social & Legal Studies

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Social movements, NGOs and other political actors often mobilise the law for social change. Strategic litigation and collective legal mobilisation can be key instruments to face current political challenges like the climate crisis, human rights violations against refugees or the exploitation of workers along global supply chains. Although these struggles are framed by a societal context and have impacts on the political and juridical fields, the literature about legal mobilisation still does not decidedly engage with a social-theory-based perspective on such struggles. By developing the concept of legal struggles, the article proposes a conceptual framework to analyse both the ambivalence and the emancipatory potential of progressive struggles in the juridical field. Critical Theory, Materialist Theory and the Theory of Social Fields by Pierre Bourdieu are combined to investigate the specific form of collective legal struggles carried out in this arena. We examine repertoires and strategies of collective actors as well as the emancipatory potential of these mobilisation strategies. Our conclusions point to the structural distinctions and selectivities which define the juridical field in capitalist societies and also the conditions of possibility of political struggles using the law.

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“…The corporate form (through the doctrines of separate legal personality and limited liability) shelters the parent company's assets even if a subsidiary is held liable for egregious human rights and environmental abuses (Simons 2012). Third, the corporate form incentivizes irresponsible behaviors, such as land grabbing, pollution, and human rights abuses, by imposing the fiduciary obligation to maximize shareholder return on corporate officers and managers (Baars 2019). 21 Finally, as discussed previously, international investment law deters Southern states from regulating the operations of foreign investors (such as extractive industries) by exposing them to costly arbitration proceedings or potential multi-million-dollar arbitral awards if national regulations diminish the value or profitability of the investment (Baars 2019;Simons 2015;Miles 2013).…”

Section: Sacrifice Zonesmentioning

confidence: 99%

“…Third, the corporate form incentivizes irresponsible behaviors, such as land grabbing, pollution, and human rights abuses, by imposing the fiduciary obligation to maximize shareholder return on corporate officers and managers (Baars 2019). 21 Finally, as discussed previously, international investment law deters Southern states from regulating the operations of foreign investors (such as extractive industries) by exposing them to costly arbitration proceedings or potential multi-million-dollar arbitral awards if national regulations diminish the value or profitability of the investment (Baars 2019;Simons 2015;Miles 2013). In sum, "powerful states have used international law and international institutions to create a globalised legal environment which protects and facilitates corporate activity" (Simons 2012, 12).…”

Section: Sacrifice Zonesmentioning

confidence: 99%

Mapping Racial Capitalism: Implications for Law

González¹,

Mutua²

2022

JLPE

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The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of racemaking. We understand race-making as including racial stratification, racial segregation, and the creation of sacrifice zones, which reflect the strategies and outcomes of profit-making. The structural features of racial capitalism thus are mutually constitutive: profit-making processes create and reinforce the making of racial meaning, while race-making, underwritten by white supremacy, structures and facilitates the economic processes of profit-making. Together, they constitute a global system dependent on the unbridled extraction of wealth from both humans and nature.

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The Corporation, Law and Capitalism

Cited by 23 publications

References 0 publications

Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability

Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability

Legal Struggles: A Social Theory Perspective on Strategic Litigation and Legal Mobilisation

Mapping Racial Capitalism: Implications for Law

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