The application of Rousseau's theory of social contract to corporate governance

摘要

Much of the literature in the area of Australian corporate law reveals dissatisfaction withudour current regulatory scheme. Despite extensive (and ongoing) legislative reforms, theudscheme continues to be criticised as costly, complex and largely inefficient in regulatingudcorporate abuse. The objective of this thesis is to consider a new model of corporateudgovernance, both internal (that is, between the members and the management of theudcorporation) and external (that is, between the corporation and the state). This model isudbased upon the theory of contractual rights and obligations proposed by Jean JacquesudRousseau in The Social Contract. The value of this model is that it recognises and seeksudto reconcile the inherent tension which underlies all associations (be they family, state orudcorporation): that of individual self-interest on the one hand and the collective good on theudother. udIn this thesis, I shall argue that our ideas of what a corporation is and how it should beudgoverned have been largely constructed by liberal theory. The corporation and itsudregulation, then, are not absolutes, but social and historical constructs which we are freeudto reject or modify as we see fit. By examining the ways in which the values andudassumptions of liberalism are made explicit in corporate law; then by comparing theudtraditional model of corporate law with that based upon Rousseau's social contract theory,udI shall seek to show that many of the assumptions and values underlying corporate law areudno longer valid. Merely 'patching up' the existing model is insufficient. What is neededudis a complete re-evaluation of the corporation and its place in our society.udThe thesis will begin by examining the corporation as a political entity. Rousseau'sudpolitical theory will then be contrasted with those of Hobbes and Locke in order to revealudthe different values and assumptions that underlie these theories. I shall then examine theudway in which contemporary company law is based upon the values and assumptions ofudliberalism, before examining both the internal and external governance of corporations inudorder to identify the problems of regulation and the application of Rousseau's theory toudthose problems.