'Comparative Corporate Governance': paradigmi definitori e genealogie comparate
Cristina Costantini (Professore Associato di Diritto privato Comparato presso il Dipartimento di Giurisprudenza dell’Università degli studi di Perugia)
- Relazione tenuta il 26 marzo 2018 presso la sede dell’Università degli Studi “Link Campus” di Roma, al Convegno “Corporate Governance and financial markets: pictures from the post-crisis era”. -
Il saggio muove da una ricostruzione definitoria e genealogica dei termini ‘corporation’ e ‘governane’, ponendone in luce le strutturali ambiguità. Per questa via, il primo, ‘corporation’, è presentato quale dispositivo concettuale in grado di minare dall’interno la pretesa unità della Tradizione Giuridica Occidentale; il secondo, ‘governance’, è inteso quale strumento di amministrazione della soglia in cui la corporation è catturata, definendo le mobili relazioni tra pubblico e privato, responsabilità individuale e limitata, proprietà, controllo ed amministrazione. L’endiadi ‘corporate governance’ non può, quindi, che enfatizzare la complessità propria di ciascuno dei due termini costitutivi, risolvendosi operazionalmente in una pluralità di modelli. Queste considerazioni consentono di comprendere più a fondo il rapporto tra corporate governance e crisi dei mercati finanziari, così da prospettare alcune soluzioni interpretative.
The essay is inspired by a definitory and genealogical perspective over the words ‘corporation’ and ‘governance’, in order to clarify their structural ambiguity. The first one, ‘corporation’, is meant as a conceptual device apt to unveil the supposed unity of the Western Legal Tradition; the second one, ‘governance’, is conceived as an important instrument for the concrete administration of the threshold in which corporation is caught, so to measure and define the fluctuant relations between public and private; personal liability and limited liability; property, control and management. The hendiadys ‘corporate governance’ emphasizes the internal complexity specific to each constitutive term and consequently detects a variety of different operational models. These arguments allow us to deeply understand the relationship between financial crisis and corporate governance and are coherently structured so to prospect some interpretative solutions.
KEYWORDS: Corporation – Governance – Comparative Law – Legal Traditions – Legal Models
What is the alchemy that transfixes the idea of corporation?
Corporation in itself exhibits a metaphysical surplus: trifling with words, it incorporates a residue of mystery so to become a portentous device of secular magic. Literature abounds with both intriguing and discomforting references to ontological or phenomenological issues: the dichotomies of presence and absence, reality and functionality, death and deathlessness have historically marked the discourses about the nature and the consistence of this odd entity. If Edward Coke portrayed a “negative form”, something that cannot be seen, has no soul, does not expiry, and that edifies its proper perfection precisely on the repudiation of all the natural limitations,  the unparalleled genius of William Maitland could claim for “the mere ghost of a fiction”,  perhaps after returning from an evening at Hamlet.  Actually, a kind of visual echo of the Hamletian anguish persists in the conceptual folds of legal corporation, whose unnatural body emerges from the dust of the tensions between being and seeming, acting and appearance, outward and inward. On the Continent, a deeper understanding of the law of corporations brings to the fore a plot of struggle and competition: different models fought one against the other and gave intellectual nourishment to cultural rivalries. Otto von Gierke constructed the clear contraposition between a Germanic and a Roman paradigm of corporation:  the first based on the idea of corporation as a fellowship, with a group personality and a group will; the second built around the conception of corporation as an institution whose identity is created by a higher political authority, principally by the imperial one. That Gierke’s narrative was rhetorically imbued with exaggeration is strongly affirmed by those who have found in the German jurist both the stuff of the artist, who delights in emphasizing the dependence of Roman corporations on the State, and the voice of the prophet, who announces the advent of a new order at the centre of which stood the free German Genossenschaft.  The clash in question was not a mere exercise of philosophical speculation; at the very end it was a dividing means for political affirmation and the transplant of Gierke’s thought through Maitland’s translation became a kind of geopolitical content.  The global nomos was dissected and sized into contending factions: those who turned corporation into the key instrument for the assertion of collectivist views and those who constructed the artificial entity theory to pose corporation at the ground of a “methodological individualism”.  On the Old Continent, Gierke spoke on behalf of Romantic conservatives: like them, he was inspired by a fierce aversion to the atomistic features of modern industrial life and by a strong desire to return to the pre-commercial society of medieval statutes and hierarchies. Beyond the Ocean, the New Continent turned to be the stage on which legal actors and political agencies disputed an endemic battle: the legal reconceptualization of the corporation was at stake. The ‘Grant theory’, that had treated corporation as an artificial being created by the State for the public pursuit, was eroded by the movement of free incorporation that distasted corporation as a privilege granted by authority, making it a common mode of doing business, a form universally available, a creation of free contract among individual shareholders, not very different from partnership.  In this perspective, the transformation of American legal thought was a concrete way of moulding American exceptionalism  against the tyranny of European Statism . Albion seemed not to be so interested in a problem that was been seriously discussed in many other lands, as Maitland noted,  maybe because the operational response has been already given and kept by the internal creations, potentiated and differentiated by the central presence of Equity jurisdiction.
What can Gierke, Maitland, John Norton Pomeroy or Justice Field, even the canonists of the eleventh century say to the economic and legal agents of the present time? History tells a story of longstanding discussions and struggles about corporation and corporate governance law, which were and perhaps remain unsettled and ..