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