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Tuesday, January 5, 2010

What is Lex Sustineo?

I am currently working on a Master's of Law (LLM) thesis on the topic of what I call "Lex Sustineo". Lex Sustineo is latin, roughly translated to mean "law of the sustainable" or "law to endure". I thought the phrase useful in describing new types of emerging social obligations which are dramatically changing the way business operates. These social obligations are often referred to as "corporate social responsibility" (CSR), "sustainability", or even "corporate legitimacy". My interest in the topic stems from a question that continually pops into my mind when I hear these phrases: "what do they all mean!".

I am a lawyer by training and trade. As such, I approach problems from a certain perspective. In the practice of law, I deal with social obligations all the time. Law itself is a social obligation, or is composed of social obligations. Law creates constraints on the behaviour of social actors. To my mind, the concepts of sustainability and CSR and legitimacy are analogous. They purport to entail constraints on commercial actors in the way they carry out their business operations. The goal of this blog will be to understand the nature of these obligations, as a form of Lex Sustineo that can be used to guide the behaviour of business managers in the conduct of their affairs.

This is not to say that CSR and law are synonymous. In fact, they are by definition not completely synonymous. CSR, to the extent that its content has been identified, necessarily goes beyond what would be conventionally understood as "legal requirements". This is what the phrase "beyond compliance" means. However, I think that it is mistaken to go from this realization to conclude that the concept of law is entirely irrelevant to the concept of CSR. On the contrary, I believe that law provides the most highly developed relevant set of concepts to help us truly understand what CSR really means. By understanding how law operates, and how it is similar (or even identical) in structure to CSR, we can better use CSR to guide behaviour in order to achieve the goal of sustainability.

To really understand what a CSR obligation looks like, I believe that it is necessary to understand its content objectively. By that I mean that a CSR obligation, to the extent that it is real, cannot be merely a subjective concept that varies from person to person, or organization to organization. In other words, for CSR to actually operate as an "obligation", as opposed to simply a moral opinion, there must be some objectively ascertainable norm, or rule, that can actually be used to guide behaviour, whether or not the rule itself is subjectively believed to be morally correct. This point may seem controversial. I don't believe that it should be. Nevertheless, it is an idea that I will develop in future blog postings.

This is where the concept of law becomes essential to understanding CSR and sustainability. Law is effective at creating obligations which serve to guide the behaviour of those to whom the law applies. For CSR norms to be effective, they will have to do the same thing. As such, it will be useful, in understanding CSR, to better understand the nature of law, and to see where CSR is similar to traditional forms of law, and where it diverges. To do this, I will also challenge traditional understandings of "law" which I think are far too narrow, and which ought to be broad enough to encompass the sorts of social obligations that are emerging with the concept of CSR.

Without presuming my conclusions, which are far from complete, I'll leave this posting with some ideas that I would like to develop in future posts:
  1. Law should be understood as a logical system providing justifying reasons for action;

  2. In terms of logical structure, law is composed of a set of conditional constraints (conditioned on the occurrence or potential of a certain kind of social action); that can be used by a social audience to evaluate the social actor; and which may give rise to conditional imperatives (in other words consequences) positive or negative, that affect the evaluated actor;

  3. CSR, insofar as it creates social obligations of a binding nature, is logically similar (if not identical to) the logic of law and should be understood as such;

  4. Law is not necessarily moral, though subjective morality, insofar as it is shared by a political community, may be a reason why a law is law for a given society;

  5. Laws, and CSR obligations, do not necessarily derive from the state authorities and can emerge from non-traditional authoritative sources;

  6. Evaluations of compliance with laws (in the broad sense referred to above, including custom), or CSR obligations, do not necessarily have to be performed by the state or centralized authorities;

  7. Consequences for non-adherence to law or CSR obligations can be imposed by entities other than the state or central authorities to be consequential.

To be continued...


LJB said...

CSR practices are quite interesting concepts in terms of their implications for other, non-legal, aspects of society. As I’m not a legal thinker, my thoughts revolve around the possible of “strong” CSR conventions on political life. If major actors in a nation's financial life adopt broadly progressive customs they could contribute to political life in a very direct way.

I can remember, for example, major corporations adopting benefit policies of equality between same and mixed sex employees far in advance of political institutions. I couldn't say exactly what impact this had on the political discussion of these issues, but I'm confident it aided progressive action. A business can make decisions that promote social change based on goals that are not democratically feasible regardless of how desirable they may be.

If CSR policies can create, or contribute to, momentum on issues in the public sphere then CSR practices could have an unexpected "perk" for corporate actors. Right now, all interaction between corporate actors and government are assumed to lead towards corruption, and away from the public interest. CSR conventions could help to reframe that narrative. Corporate power could become seen as a progressive, rather that negative force in social life. This could also offer a strong incentive for participation in the promotion of these ideas.

The downside, of course, is that businesses are not democratic organizations. The creation of the corporation as a moral, or responsible, actor will not thrill everyone, particularly those who would like to emphasize citizen involvement in agenda setting. That might be ok though, as the creation of a new moral center of gravity in democratic societies could have other implication on citizen involvement…


Thanks for the comment! I think you're absolutely correct to say that corporate practices can influence the direction of legislation when they address important social issues. It is also true that companies will adopt practices in advance of legislation so that they do not get walloped by legislative changes that are inevitable. I think that these insights are true in the case of gender equality, and also occupational health and safety practices, which were implemented (and still are) in a "beyond compliance" manner.

To your last point, it is very true that companies are not people and cannot be "moral" or "ethical", although their employees, officers and directors can be. But that is why I think CSR should be thought of in terms of rules for conduct, rather than morality, although morality may inform the rules.

Interesting thoughts and thanks for reading!