Reflexive Law And The CSR Debate

Author:Olufemi O. Amao
Position:Recipient of the President's PhD scholarship and the Department of Law scholarship at University College, Cork. I am grateful to Silvanna Rendel-Beeri for her comments
Pages:55-64
Cork Online Law R eview 2007 6
Amao, Reflexive L aw and the CSR Debate
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REFLEXIVE LAW AND THE CSR DEBATE
Reflexive Law: Does it have any relevance to the Corporate Social
Responsibility (CSR) debate?
Olufemi O. Amao1
A ABSTRACT
While conceding that CSR has the potential to address the fallouts from
corporate capitalism, this paper argues that rather than the suspicion of law
and regulation that has tended to shape the debate and the voluntarism that
has dominated the discourse, a proper understanding of the role of law could
remove most of the fuzziness that has clouded the CSR debate. The paper
posits that approaching CSR from the dynamic perspective of reflexive law
theory could breach the gap between CSR and law in a constructive way by
recognising and appropriating the potentials of other norm generating
subsystems.
B INTRODUCTION
This paper posits that approaching the concept of CSR from the dynamic
perspective of reflexive law theory could breach the gap between CSR and law
in a constructive way by recognising and appropriating the potentials of other
norm generating subsystems apart from law. Also the approach would
recognise and appropriate the potentials of the global civil society,
international institutions and the business community; refine the
construction of the role of business in the society; define key concepts and
from this understanding develop a better framework for optimising the
potentials of CSR. To illustrate this idea the paper draws examples from the
use of Memorandum of Understanding as CSR strategy in Nigeria and The
Extractive Industries Transparency Initiative.
C WHY REFLEXIVE LAW?
Many commentators on the voluntarism/mandatory regulation debates
have pitched CSR voluntary strategies against the traditional models of
regulation, which is a state centred process of mediation through law,
legislative, and administrative actions. The reason for this posture can be
linked with two dominant theories of law: the positivist theory of law which
stresses the unity of state and law and the critical theory which tends to
reduce law into power politics.2
However as many research works have demonstrated both lines of
approach reveal drawbacks that have dogged the development of CSR. The
regulatory approach is faced with three major problems that have been
described as the ‘regulatory trilemma’. This has been explained in simple
terms that: “law may be irrelevant to the other sub-systems and of no effect
(‘mutual indifference’), through creeping legalism may damage the other
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1 Recipient of the P resident’s PhD scholarship and the Department of Law scholarship a t
University College , Cork. I am grateful to Silvanna R endel-Beeri for her comments.
2 Teubner, Global L aw Without a State 3-38

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