-
Postmodernism is often presented as the antithesis of the desirable, the
ethical, the functional or the reflective. This survey of Australian company
law journals since 1991 shows that their covers conceal a largely Marxist-inspired
and French-influenced postmodern critique. These journals reveal that the
standard literature for Australian students of company law is Theory-ladened.
The articles reflect the characteristics of the paradigm of postmodernism
in Harvey's The Condition of Postmodernism: An Inquiry into the Origin
of Cultural Change (1989) and Jameson's Postmodernism, Or, The Cultural
Logic of Late Capitalism (1991). They are:
-
a total acceptance of the emphemarility, fragmentation, discontinuity and
chaos of human knowledge;
-
the impossibility of metanarratives or universal truths;
-
ethical problems which arise from lacking universal standards (Rorty’s
statement that one can only act ‘locally’);
-
little attempt to sustain continuities of values, beliefs or even disbelief;
-
the psychological presupposition that schizophrenia rather than paranoia
and alienation is central;
-
immediacy as the only thing left - the rule of the sensational and the
spectacle in place of memory and historical continuity accompanied by a
paradoxical nostalgic impulse for the past and an international cultural
eclecticism;
-
language speaks through us (Barthes’ and Foucault’s ‘death of the author’);
-
the link between the signified (message) and the signifier (medium) is
no longer seen as singularly determined but as constantly deconstructing
itself;
-
the importance of interpretative communities (Foucault’s -’heterotopia’)
and their relative autonomy;
-
a focus on communication and means of exercising power in post-industrial
information-based societies; and
-
a complex relationship with popular culture revealed by the extension of
the power of the market over the whole range of cultural production, including
law, and an interplay between masking and unveiling in the treatment of
privacy and the right to know.
-
Paradoxically, the paper concludes that reading these articles is the best
way to teach ethical and reflective company law: law is not divorced from
the culture in which it is imbricated.
2.
The state of Sir Samuel Griffith's tower
A. What is it that
company law teachers teach?
-
One point of stress in western legal systems is the perception, itself,
that they are in crisis. Is this what Wishart observed?[1]
Lawyers of varying backgrounds have a sense of unease about the institutions
of law, their incoherence and lack of predictability.[2]
Legal education, as an institution of law, has not avoided this bewilderment.
-
The conflict over what law is underlies the teaching of it.[3]
There is uncertainty about whether law is autonomous, a concept with a
highly politicised origin. If it is not, there is puzzlement about what
other influences determine it.[4] Analysis
of company law has been substantially affected in recent years by developments
in economics and finance such as the efficient capital market hypothesis.
Rather than limit the quandaries it has added to them in conflict over
what role law should play in the government and regulation of companies.[5]
The complexity of corporate concepts and transactions sees the law under
stress at the boundary between where it works, and may not be invoked,
and where it works badly, and is appealed to to resolve disputes.[6]
-
For Hart defining law involved three questions which hold any definition
in perpetual tension:
-
How does law differ from and how is it related to orders backed by threats?
-
How does legal obligation differ from, and how is it related to, moral
obligation?
-
What are the rules and to what extent is law an affair of rules?[7]
-
E P Thompson considered these questions on his narrow ledge between liberalism
and Marxist structuralism. He had just spent five years looking at the
conflict between the poor and the rich in the royal forests of England
in the eighteenth century. In this 'very petty conjuncture: in an island
on the edge of the Atlantic, very well supplied with lawyers' he concluded
that the law was 'relatively autonomous'. He concluded that there were
limits on this independence:
when I was watching, law was running quite free of economy, doing its
errands, defending its property, preparing the way for it ... on several
occasions, while I was actually watching, the lonely hour of the last instance
actually came. The last instance like an unholy ghost, actually grabbed
hold of the law, throttled it, forced it to change its language and to
will into existence forms appropriate to the mode of production, such as
enclosure acts and new case-law excluding customary rights.[8]
-
Thompson then made a claim for which, he agreed, the evidence was 'highly
marginal' as well as 'being seriously contaminated by empirical content'
that the law was everywhere:
... I found that the law did not keep politely to a 'level' but was
at every bloody level; it was imbricated in the mode of production and
productive relations themselves (as property-rights, definitions of agrarian
practice) and it was simultaneously present in the philosophy of Locke;
it intruded brusquely into alien categories, reappearing bewigged and begowned
in the guise of ideology; it danced a cotillion with religion, moralising
over the theatre of Tyburn; it was an arm of politics and politics was
one of its arms; it was an academic discipline, subject to the rigour of
its own autonomous logic; it contributed to the self-identity both of rulers
and of ruled; above all, it afforded an arena for class struggle, within
which alternative notions of law were fought out.[9]
-
Thompson's view of law may be a blunt instrument to take to Hart's nice
questions. It enables them, and possible answers, to be evaluated from
the perspectives of different parties. Is a previous statement by a court
law if it is likely to be departed from? Is it law if the circumstances
have never been considered but that what the court would decide is generally
agreed upon in the legal community? Is morality law if the issue has not
been decided but the moral basis on which it should be decided is not disputed?
Is an interpretative technique law if different interpretative techniques
could lead to different results and a majority decision in which no one
technique prevails? Is it law if a judge, faced in litigation with an issue,
outside the court states an opinion on what the law is? [10]
Parties in a dispute may be attracted not to support one method or process
of deciding which legal statement is 'law' but by the content of statements
produced by any method which supports their present interests. This may
then take them back to attacking any particular method which has produced
statements of the law contrary to those on which they seek to rely.
-
Thompson's view deals with another difficult question: where do we stop
speaking of law and start speaking of society or the economic firm as opposed
to the legal company? One place to stop is beyond the boundary of official
state law where people no longer invoke legal codes in claims which they
make against each other, that is, the idea of law is absent as a way of
validating a claim.[11] Thompson,
however, indicates that this boundary of law is further out than it is
commonly perceived to be.
-
Thompson's view, however, conforms with the lawyers' belief that legal
doctrine does matter. Most lawyers would concede that "when more immediate
criteria, like the language of an authoritative statute, leave matters
in doubt, one choice will cohere better with all the legal materials than
any other."[12]
-
It also confirms the lawyers' understanding that a legal decision is likely
to reflect contemporary values, including moral judgments.[13]
The problem for company law is acute when there are rapid changes in corporate
financial technology that legal doctrine has not contemplated and when
there is no moral imperative or the moral imperative is contested as the
social functions of property are reordered.
-
These insights might not answer problems which law has posed for generations:
judicial decision making is political and economic freedom conceals coercion.
But it reminds students constantly that these are problems.
B.
Defending Sir Samuel's tower
-
One of the reactions to the sense of crisis in Australian law has been
the establishment of the Sir Samuel Griffith Society. This is generally
regarded to be a conservative association, to the extent that the phenomenon
of conservatism occurs in Australia. For such a goanna ridden country our
conservatives have been surprisingly chameleon-like.[14]
It is generally thought that Australian politics were born modern and too
late to be either Whig or Tory.[15]
The term now has to deal with the confusion introduced by libertarians
and Hayek's use of the concept 'liberal' to describe his own political
beliefs which has muddled previously recognised 'conservative' and 'liberal'
values.[16] Hayek was one of the intellectual
ancestors of Thatcherism and, according to him, Thatcher would be a 'liberal'.[17]
Thatcher's embrace, and promotion, of Hayek has led to a further confusion
in terminology in conservative parties which are the fusions of liberals
and conservatives.[18] She neither
resisted nor accommodated change but seized the agenda as a Hayekian liberal
would. Such developments led to the term 'libertarian' to describe this
liberalism in conservative clothing. However, some self-confessed libertarians,
seek to exclude Hayek, Thatcher and Milton Friedman from the term.[19]
There is a Hayekian influence within the Samuel Griffith Society which
may lead its members to deny that they are conservative.[20]
However the themes of the papers of the most prominent members, particularly
Sir Garfield Barwick and Sir Harry Gibbs,[21]
would meet Hayek's conservative criteria. Conservatives, Hayek claims,
are mainly concerned with who should exercise power. They resist change
where it is not controlled by superior persons whose standards and values
should be protected and who should have a greater influence than others
on public affairs.[22]
-
The society's founding paralleled the High Court's decision in Mabo v Queensland
(No 2).[23] Since then a number of
Australian lawyers have attacked the High Court under Mason CJ and Brennan
CJ for activism resulting from the use of political values in judicial
decision making. Papers delivered at the society's conferences have received
considerable publicity. They contrast it with the politically neutral legalism
of the High Court under Latham, Dixon, Barwick and Gibbs C JJ which they
praise as representing the liberal phenomenon essential for the rule of
law. They have used the political theories of Hayek, explicitly or implicitly
to do this.[24] His ideas have been
widely promoted by conservative think tanks to delegitimise socialism and
the welfare state.[25]
-
The society's principal purposes include 'restore the authority of Parliament
as against the Executive'. Its comments in respect of this are surprising.
It claims that '[t]here is growing concern at the decline in the prestige,
standing and influence of Parliament, and the growing centralisation of
power and authority in the Executive.' It is difficult to know what Golden
Age in English history they are using as a benchmark. The society also
seeks to prevent the further erosion of federalism by 'the expansion of
the power of the Commonwealth at the expense of the States'.[26]
The significant powers surrendered by the states and territories as part
of the Alice Springs Agreement and the resulting Corporations Law has so
far escaped its attention. Presumably the reach of the federal Aboriginal
affairs power as a result of the native title decisions of the High Court
is why the society seems to have an obsession with Aboriginal issues. Yet
the only reference to company law in their conference papers is in the
context of indigenous affairs.[27]
-
The defence of Sir Samuel's Constitution and the legal order as it existed
in the past is the theme of many papers. Judges, particularly the High
Court, are making 'political decisions' and not giving sufficient weight
to the legislative views of parliaments or to precedents. Former chief
justices Barwick and Gibbs make it clear that these judges are unworthy
heirs. They appear to support Hayek's elevated beliefs about the common
law and share his shortcomings. He argued that it is based on no conscious
design but the adjustment of the mutual expectations of individuals.[28]
Even if this were true of the common law it need not necessarily apply
to constitutional interpretation.[29]
Hayek's description of the common law conceals political issues in judicial
decision making. The judge cannot 'will' a particular result but Hayek
concedes that the experience of the judge matters.[30]
Hayek exaggerates the certainty and restraints which the law imposes on
everyone including the judges. He does not acknowledge the problem which
follows from the abandonment of the logic of the syllogism which was used
by Pound and others to criticise the Realist description of the law: it
does not provide for equal justice.[31]
-
Everywhere the darkness descends. The implementation of a report on education
in civics means that: "school children would be in danger of ending up
in a kind of chaos of the tribal, ideological, cultural, religious and
other divisions to which the republican push has given life or a renewed
lease of life."[32]
-
Like the legal order which Barwick and Gibbs imagine, the Sir Samuel the
society reverences, as the upright Chief Justice, does not appear to be
the same one who was Chief Justice of Australia and remained actively involved
in politics.[33] Depending on which
Sir Samuel you pick you may get a different reaction to current company
law teaching practices and its subversion by Marxist-inspired postmodernism.
C.
Postmodernists at the gates
I define postmodernism as incredulity towards metanarratives.[34]
(i)
Looking backwards
-
The Samuel Griffith's Society has largely ignored postmodernism. In their
conference proceedings it is only referred to once. It is in the context
of Aboriginal matters and the confession by anthropologists that it is
'time to abandon our search for objective truth and our reliance on scientific
methods of enquiry.' Lawyers may not be as horrified by the suggestions
by anthropologists that there are varying versions of not only facts but
social customs and law.[35]
-
Postmodernism is the product of its past, it has been called the archaeology
of the modern, but the past is perceived in the present and that affects
our present view of these older theories.[36]
This is now a commonplace theme for lawyers through Dworkin's metaphor
of the chain novel to describe the development of the common law with judges
writing successive 'chapters' to reach a 'best fit' with the previous chapters.[37]
As Posner points out one of the effects of this is that, by being aware
of what comes next, we read the previous chapters differently.[38]
(ii) Modernism
and the law
-
Postmodernism can be understood in terms of what it is not. Habermas
identifies the beginning of 'modernity' in the Enlightenment of the eighteenth
century. It represented 'a dialectical opposition to what is not functionally
'modern' namely tradition.'[39] While
there is continuing conflict over its origins [40]
there is more general agreement that it represented the "extraordinary
intellectual efforts on the part of Enlightenment thinkers 'to develop
objective science, universal morality and law, and autonomous art according
to their inner logic.'"[41]
-
These efforts impacted on law with the slogan of the French Revolution:
"A good law must be good for everyone in exactly the same way that a true
proposition is true for all."[42]
-
It led to what Habermas describes as an
extravagant expectation that the arts and sciences would promote not
only the control of natural forces but also understanding of the world
and self, moral progress, the justice of institutions and even the happiness
of human beings.[43]
Lawyers and thinkers influential in law
took as axiomatic that there was only one possible answer to any question.
From this it followed that the world could be controlled and rationally
ordered if we could only picture and represent it rightly. But this presumed
that there existed a single correct mode of representation which, if we
could uncover it (and this is what scientific and mathematical endeavours
were all about), would provide the means to Enlightenment ends.[44]
-
Australian company lawyers are familiar with this in the spin given
to programs to simplify company legislation or render it economically friendly.[45]
Uncertainty in the law was seen as the product of lawyers' quarrels over
the meaning of legal doctrine. This ideology shaped the positivist legal
formalism which came to dominate the common law in the scientificism of
the nineteenth century. It led to platonism, the belief that legal ideas
exist 'like trees on rocks, rather than are created.'[46]
-
The rationality of the Enlightenment had never been without its critics
whose spectrum of other opinions coincided on this doubt. There was a persistent
recognition of the failure of the promise of rational processes to deliver
the expected practical results it promises.[47]
Lyotard has traced it in Hesiod and Plato.[48]
The critics included Edmund Burke, De Sade and Malthus. The fault finding
accelerated at the end of the nineteenth and the beginning of the twentieth
centuries in what has been described as 'the dark side of the Enlightenment'
or the 'turning back of modern reason upon, or against itself'.[49]
Nietzsche and Heidegger queried the ideas of 'progress' and 'overcoming'.[50]
Adorno queried the possibility of conceptualizing the 'totality'.[51]
Simmel identified a crisis in modern culture and the exhaustion of modern
cultural forms.[52] As Harrington
observed in 1965 '[f]or more than fifty years, the Western World has haunted
itself with rumours of its own death.'[53]
-
Significantly for law the critics came to include Max Weber who perceived
that the cycle of rational progress recreated the wasteland, which had
been developed, within the developer.[54]
Whether it is called postmodernism or something else the themes associated
with postmodern thought had become familiar in law in the twentieth century.
Postmodernism in law does not necessarily lead to a radical break with
modernism.[55] At this point scepticism
about rationality in postmodern thought meets Hayek and some of the supporters
of the common law tradition in the Samuel Griffith's Society. Hayek rejected
the rationality of the Enlightenment for the rationality produced by the
common law in the adjustment of the mutual expectations of individuals.[56]
-
Different conclusions appear to follow from these two rationalities. The
acceptance of rationality in the sense used by Hayek seems to lead to conclusions
associated with the declaratory theory of law and Dworkin, that there is
only one right answer.[57] The rejection
of Enlightenment rationality, without accepting Hayek's view, appears to
have led to an acceptance that law is indeterminate, even if this was shown
by rational arguments and was part of an attempt to describe law more perfectly.[58]
This rejection of formalism in the common law started in the United States[59]
and these issues had already been widely explored by the realist and process
schools in American law. Meaning in law had to be considered in social,
political and economic contexts.[60]
The uncertainty of language in communicating human thought and awareness
of the relativism produced by different perspectives of the same phenomenon
or event were already prevalent. Indeterminacy was nothing new.
(iii) Postmodernism
and the 'present'
-
Postmodernism is associated with the present and the social and economic
changes which led to the 'media society', the 'society of the spectacle',
the 'consumption society', the 'society of controlled consumption' or the
'post industrial society.'[61] The
meaning of postmodernism is unclear. Its very existence as separate from
modernism is uncertain.[62] The name
itself emerged in the United States to describe contemporary culture.[63]
It suggests that it comes after the modern and therefore has a separate
identity. But a number of writers see it as a continuance of the modern.
Lyotard states postmodernism is 'undoubtedly a part of the modern.'[64]
Foucault claimed not to understand the term and Baudrillard questioned
its existence.[65] Others have referred
to it as the modern 'taking a long, attentive and sober look at itself',
'coming of age' or 'self-monitoring.'[66]
It has been argued to represent just a revolt within modernism, a style,
a periodizing concept, a revolutionary force, the commercialisation and
domestication of modernism, 'spectacle or image society', 'media capitalism',
'the world system', 'multinational capitalism', 'a radical restructuring
of capitalism', the 'art of an inflationary era' and the 'cultural logic
of late capitalism.'[67]
-
So far postmodernism has been discussed as if it were a historical and
geographical philosophical phenomenon but it is a condition which is 'overwhelmingly
present'.[68] It is the cultural condition
in which we are now living in which socio-legal thought is exposed to the
crises of confidence and representation. It is a time of re-interpretation
of significant theorists of modernity, such as Weber and Marx, to disclose
the irreconcilable conflicts in their thoughts.[69]
It is because postmodernism is the present that we find that there are
echoes of the past. To borrow Dworkin's analogy, each generation has the
experience of writing chapters not knowing what the ending will be or what
will happen in a future chapter. If this makes us anxious, uncertain and
open to doubt we are not the first to experience it. Company law students
need to experience what it is like not to know the end of the story, to
conceive the possible endings and how they will reach them. For another
reason this concept of the present is significant in law teaching. As Twining
observes 'law feature[s] prominently on the front page of newspapers.'[70]
'One of the best compliments', he writes, 'that I have heard paid to a
law degree by a former student was that by the time he graduated he was
equipped to understand every page of the Financial Times (including its
excellent Arts section).'[71]
-
Harvey notes that 'we are within the culture of postmodernism to the point
where its facile repudiation is as impossible as any equally facile celebration
of it is complacent and corrupt.'[72]
The concepts flowing from it are entering all cultural fields. Students
of company law in Australia should also be able to read the not-so-excellent
Arts pages of the Australian Financial Review.
-
Postmodern has developed a broader and a narrower meaning.
(a)
Broad postmodernism: 'turning back of modern reason upon, or against itself'[73]
-
Central to both concepts of postmodernism is the critique of reason. Whether
this resulted from the failure of rational methodology of the Enlightenment
or from the failure to use that methodology properly is disputed. The methodology
used tended to treat knowledge as existing independently of morality or
the context of deciding. Yet deciding involved morality because it was
embodied in the knowledge applied to make determinations. This obscured
and ignored both the ethical component in knowledge as well as the power
component in knowledge as Lyotard explained:
Take any civil law as an example. It states that a given category of
citizens must perform a specific kind of action. Legitimation is the process
by which the legislator is authorized to promulgate such a law as a norm.
Now take the example of a scientific statement: it is subject to the rule
that a statement must fulfil a given set of conditions in order to be accepted
as scientific. In this case legitimation is the process by which a 'legislator'
dealing with scientific discourse is authorized to prescribe the stated
conditions (in general, conditions of internal consistency and experimental
verification) determining whether a statement is to be included in that
discourse for consideration by the scientific community.
The parallel may appear forced. But as we will see, it is not. The question
of the legitimacy of science has been indissociably linked to that of the
legitimation of the legislator since the time of Plato. From this point
of view, the right to decide what is true is not independent of the right
to decide what is just, even if the statements consigned to these two authorities
differ in nature. The point is that there is a strict interlinkage between
the kind of language called science and the kind called ethics and politics:
they both stem from the same perspective, the same 'choice' if you will
- the choice called the Occident.[74]
-
Modernism was marked by determinacy. Postmodernism is distinguished by
its indeterminacy.[75] It is one factor
which has led to postmodernism being blamed for the breakdown of intellectual
activity.[76] Even the thinkers 'most
closely identified with the postmodern might be described as, at best,
reluctant participants.'[77] But the
rational tradition of modernism did not permit the rejection of a theory
because of its implications.
-
Modernism was based on reason.[78]
This has led to a number of contradictions which marks postmodern thought.
While the metanarrative of rationalism and science has been abandoned the
grammar and vocabulary of modernism are the only ones available.[79]
Writers are afflicted in knowing that their knowledge is a pastiche of
dead styles,[80] marked by unconscious
bias[81] and search for some limited
safehaven in ironic or pragmatic thought. One of the paradoxes of postmodernism
is its continued use of reason in spite of its attack on reason. Lyotard
argues that to continue to interrogate reason to show that it is not 'a
question of one massive and unique reason' is part of an older and bigger
interrogation: "the crisis of reason has been precisely the bath in which
scientific reason has been immersed for a century, and ... this continual
interrogation of reason, is certainly the most rational thing around."[82]
Its possibilities are of particular interest to lawyers in adversarial
legal systems: "Here, look how this style embodies a particular vision
... and how it is challenged by the style next to it, and by the style
next to that."[83]
-
Postmodernism and its themes of relativism, context and indeterminacy are
now unavoidable. Some consequences of this are swept under the carpet of
everyday practice in law and teaching. One of these is indeterminacy. The
indeterminacy of the legal medium rarely intrudes into legal writing about
company law and securities regulation. The effect is that modernism lingers
on and the ideas of normative legal thought still prevail. Schlag in 1990
observed that law, in most legal writing, still appears as something almost
solid: "authored by and addressed to an autonomous, coherent, integrated,
rational, originary self, receptive to moral argument through a medium
of language that is itself weightless and neutral."[84]
-
The writers of the articles appear as objective observers, relatively autonomous
selves, whose language like the law is also 'weightless and neutral.'[85]
However, as discussed below, once law journals are read cover to cover,
rather than selectively for articles revealed by an index as closely related
to a doctrinal topic, the phenomena observed by Schlag become apparent.
-
Lyotard declared: 'I define postmodernism as incredulity towards
metanarratives'.[86] His voice has
now been joined by others: 'there is no single monolithic postmodernism';[87]
'postmodernism turns out to be a minefield of conflicting notions.'[88]
So the first paradox of postmodernism is that its metanarrative is that
there is no metanarrative.
-
The most commonly described features of postmodernism further emphasise
the indeterminacy of knowledge and communication based on the perception
that language mediates our understanding and that it masks reality, as
it really is, from us. The French writers Barthes, Baudrillard, Derrida,
Foucault and Lyotard have together pursued a number of themes which bear
on this: an absence of secure foundations of knowledge; a crisis in representation
and associated instability of meaning; the centrality of language, its
structure and use; and the inappropriateness of the assumption in the rational
tradition of the 'rational autonomous subject.'[89]
Emerging from their writings and those of others such as Rorty there are
conceptions of pragmatic action as a response to these indeterminacies.
-
In contemporary legal writing, particularly in the United States, there
are two strands of postmodernism: that associated with these French writers
who are sometimes designated poststructuralists.[90]
There is a second strand associated with neopragmatism which shares this
view of language and reality but also emphasises that language and knowledge
are social constructions.[91]
(b)
Narrow postmodernism: continuing the Marxist project
-
As a number of the alternative names for postmodernism suggest it has been
seen as linked with contemporary advanced capitalist culture "following
the transformations which, since the end of the nineteenth century, have
altered the game rules for science, literature and the arts."[92]
-
The persistence of questions about power and control 'particularly in the
increasing monopolization of information by private business' would seem
to continue the privileged position of Marxism in the explanation of this
form of capitalism even if the social classes described by Marx no longer
function as their places are taken by bureaucracy and technocracy.[93]
This is the position reached by two influential writers on postmodernism,
Harvey and Jameson, 'who treat the postmodern as an epiphenomenon of transformation
in the capitalist mode of production.'[94]
As the company, from one aspect, is a device for the accumulation and management
of capital these theses relating to the transformation of capital are particularly
relevant to analysing company law.
-
Lyotard draws on Bell's and Touraine's theses of the emergence of a 'postindustrial'
and 'information-based society' which has transformed the language of communication
in advanced capitalist societies in his analysis of contemporary society.[95]
Knowledge 'has become the principal form of production' in these societies
and is 'a stake in the worldwide competition for power.' In the context
of pointing out that the form of 'the circulation of capital that go by
the name of multinational corporations' already imperils the stability
of the state he predicts that 'the mercantilization of knowledge is bound
to affect the privilege nation-states have enjoyed, and still enjoy, with
the production and distribution of learning.' As a result new fields are
open for 'commercial and industrial strategies' in which 'the problem of
the relationship between economic and State powers threatens to arise with
a new urgency.'[96]
-
Harvey's and Jameson's privileging of Marxism appears to rest on the ethical
and moral problems they see in postmodernism if they do not. Their reliance
on it appears to be an act of faith. Harvey's is a reaction to the 'class
aggrandizement'[97] he saw in Reagan's
America based on the carefully manufactured image of a president and what
George Bush described as 'voodoo economics" in which "poverty and homelessness
are served up for aesthetic pleasure' [98]
as America slid from the leading creditor to the leading debtor nation
for which a cure of 'market-orientated policies' is now prescribed.[99]
The reverse side was the casino capitalism which impenetrated 'the capital
of production' with 'the capital of fiction'.[100]
Jameson is also scathing of Reagan's America and calls for theoretical
innovation but continues an uncritical commitment to Marxism looking for
a new agent of social change: 'a new international proletariat (taking
forms we cannot yet imagine) will re-emerge from this convulsive upheaval
it needs no prophet to predict.'[101]
-
Jameson's perspective is that by the end of the Second World War the technology
for a significant change in capitalism was present. The war had also re-organised
international relations and laid the groundwork for a new economic system.
He identifies 1973 as a significant year in which both the economic and
cultural structures were transformed by the oil crisis, the abandonment
of the gold standard and the beginning of the end of traditional communism
in Europe.[102] The commodification
of this form of economics has extended into spheres previously thought
to be autonomous such as the arts.[103]
The ideology of the market that, no society can function without it, economic
planning is impossible, it is in human nature, the nationalisation of capital
is not necessary and is inefficient and that it produces freedom prevails.[104]
How this came to be he suggests is explained by its relationship with
the global media.[105]
-
Jameson draws on Ernest Mandel's model of a third stage of capitalism which
he described as 'late capitalism'.[106]
At its core is the exponential acceleration in the technology used as fixed
capital on the rate at which the value of that capital was recouped for
the renewal of fixed capital. This led to increasingly shorter periods
in which fixed capital was renewed and also led to an emphasis on technology
and intellectual property, which permitted that time to be increasingly
shortened, as the most valuable form of capital.[107]
Old distinctions between fixed capital and circulating capital disappeared.[108]
This led to further specialisation in labour to develop and manage this
technology.[109] The pressure on
capital was so great that none could be left idle and what would otherwise
be so was mopped up in the provisions of services which could then be substituted
by the provision of commodities.[110]
This same pressure also accelerated the push of capital through national
boundaries and into international markets leading to increasing internationalisation
and centralisation of capital.[111]
Mandel rejected Bell's analysis that post-industrial societies could not
be analysed in Marxist concepts.[112]
He shows that the primacy Bell gave to technological development and the
shift to informational technology in particular could all be explained
in classical Marxist terms as the global expansion of capitalism, which
was then penetrating precapitalist Third World societies and First World
culture, as 'the colonisation of Nature and the Unconscious'.[113]
Mandel argued that the ultimate defining characteristic was the extraction
of the surplus value rather than the commodity produced. He described the
period from 1940 to 1965:
This new period was characterized, among other things, by the fact
that alongside machine-made industrial consumer goods (as from the early-19th
century) and machine-made machines (as from the mid-19th century), we now
find machine-produced raw materials and food stuffs. Late capitalism, far
from representing a 'post-industrial society', thus appears as the period
in which all branches of the economy are fully industrialized for the first
time; to which one could add the increasing mechanization of the sphere
of circulation (with the exception of pure repair services) and the increasing
mechanization of the superstructure.[114]
-
Non-Marxist writers, such as Bell, also observed this transformation.[115]
Harrington noted in 1965 the convergence between the American corporation
and the Soviet state-owned enterprise. This was hardly new. This is where
the views of Berle on the company were leading American regulatory philosophy.
If the shareholders no longer controlled the company and the company's
role was to become the instrument of the people. If that was the case,
as Hayek pointed out, 'the appointed representatives of the public interest
should control the management.'[116]
Harrington quoted Schumpeter on what the consequences were for the ownership
of corporate capital:
The capitalist process, by substituting a mere parcel of shares for
the walls of, and machines in, a factory, takes the life out of the idea
of property. It loses the grip that was once so strong - the grip in the
sense of the legal right and the actual ability to do so as one pleases
with one's own ... And this evaporation of what we may term the material
substance of property - its visible and touchable reality - affects not
only the attitudes of the holder but also that of the workmen and public
in general. Denaturized, defunctionalized and absentee ownership does not
impress and call forth moral allegiance as the vital form of property did."[117]
-
The focus of writers such as Harvey and Jameson has been on how 'services'
such as the arts have been transformed by the commodification that their
products underwent. This suggests a consideration of the company law journal
itself as an artefact of late capitalism.
-
The journals looked at in this survey, the Australian Business Law Review,
the Company and Securities Law Journal and the Australian Journal of Corporate
Law, contain articles frequently written by academic lawyers. They once
published in, almost, free university law reviews. These three publications
are produced by commercial law publishers and the subscriptions are substantial.
They are also retailed through their proprietors' on-line services. They
have been commodified. They mop-up increasing amounts of the research time
of company law teachers. In the final contradiction these academics supply
the articles for free and their respective universities then pay for the
journal both in hard copy and as part of an on-line service.
-
But, more significantly, Mandel's model provides insights into what happened
to capital in companies although he does not write specifically about the
shareholder's position. In the period after the Second World War takeovers
became a feature of corporate life. Generally capital in a company had
been a commodity which could be traded for several centuries. It was also
changed by this process of the blurring of distinctions between forms of
capital. Companies had once manufactured commodities. In this accelerated,
or new form, of capitalism companies emerged which were themselves commodities
whose capital was used to obtain the capital of other companies as the
quickest way to recoup the renewal of that capital. This had been possible
for some time and had been done previously. But it then became far more
prevalent and was accompanied by increasingly complex financial transaction
which represented a new technology of finance. As with the renewal of technology
in the exploitation of other resources information about the company took
on a new significance.
-
Looking back it becomes clear that the by late 1960s company law had entered
'the information age' with the increasing importance of information in
companies being recognised. Galbraith in 1967 had implicitly recognised
the importance of information and its 'technology' in the large American
corporation around which a new managerial class, the 'technostructure',
was constituted[118] and from which
the shareholders had to be excluded.[119]
To secure autonomy the managers required access to debt capital without
surrendering decision making power. This it found in an abundant debt market.[120]
He argued that processing information had become the major activity of
these companies:
"The modern business organization, or that part which has to do with
guidance and direction, consists of numerous individuals who are engaged
at any given time, in obtaining, digesting or exchanging and testing information."[121]
-
The power of shareholders had declined for a number of reasons:
More important is the failure of knowledge. Those who are not active
in the management of the enterprise have less and less knowledge of what
is happening and less opportunity of informing themselves at a time when
the increasing size and complexity of the enterprise mean that more and
more knowledge is required for intelligent decision. The individual or
individuals who are immediately in authority, by contrast, retain the knowledge
which goes automatically with such association.[122]
-
Observations about information are now commonplace and there are major
debates in company law and securities regulation about disclosure and its
central paradox:
Perhaps the most important force driving financial markets is information.
It is not surprising therefore, that rules governing the disclosure of
information would be central to the stabilization of expectations about
risk, and thus to the maintenance of the basis of trust necessary for the
functioning of such markets. However, the issue of information disclosure
involves a central contradiction. Profitable trading results from capturing
the value of private information, which would be negated by disclosure;
hence, an obligation to disclose removes an economic incentive to acquire
information, and would impede the flow of active trading by participants
who believe they have an advantageous knowledge or superior analysis. On
the other hand, many investors would be repelled from markets if they perceive
them to be rigged by 'privileged' knowledgeable insiders.[123]
-
Lawyers, including students and teachers, have their interests focussed
by the concerns of their times and so the image built up of what would
be 'out there', if the object of the corporate law writing existed, would
be expected to show the outlines of current concerns. Contemporary corporate
law writing does focus on information, its flow and control, the control
of companies, and issues associated with these of corporate governance
and regulation, sensitivities to things which may impact on those issue
such as institutional investors and globalisation and internationalisation.
They are not exclusive categories and there is a considerable number of
connections between them.
3.
Postmodernism in Ford's turret
In the research racks at Shearston Hayden Stone, Inc a commodity letter
bears this quotation from Heraclitus: 'All is flux, nothing stays still.'
Marshall Berman, All That Is Solid Melts In The Air: The Experience
Of Modernity (Verso: London, 1983) 87 citing 'Shearston Chief Builds
a New Wall Street Giant', New York Times, 1979.
-
Harvey, writing about contemporary culture and the arts, lists a number
of major themes which are associated with postmodernism. These themes are
constantly returned to in contemporary Australian corporate legal writing.
A large part of it is written by company law teachers and read by their
students.
-
The postmodernist themes Harvey identifies are:
-
a total acceptance of the ephemerality, fragmentation, discontinuity
and chaos of human knowledge.[124]
-
the impossibility of metanarratives or universal truths.[125]
-
the importance of interpretative communities and their relative autonomy
which Foucault called 'heterotopia'.[126]
This
is significant for: Foucault's emphasis of the interplay between power
and knowledge which makes it impossible to escape the consequences of knowing
and administrating;[127] and
Lytotard's emphasis on the infinite number of language games in which the
social subject seems to dissolve.[128]
-
a focus on communication and means of exercising power in post-industrial
information based societies.[129]
-
the link between the signified (message) and the signifier (medium) which
is no longer seen as singularly determined but as constantly deconstructing
itself so that cultural life can be seen as a series of texts intersecting
with others.[130]
-
that language speaks through us, or as Barthes and Foucault call it, the
death of the author.[131]
-
ethical problems which arise from lacking universal standards best known
from Rorty's statement that one can only act 'locally'.[132]
-
little attempts to sustain continuities of values, beliefs or even disbelief.[133]
-
in terms of psychological presuppositions, the centrality of schizophrenia
rather than paranoia and alienation.[134]
-
in the immediacy which is the only thing left. This is the rule of the
sensational and the spectacle in place of memory and historical continuity.
There is a loss of depth and an emphasis on surfaces. This leads to us
living in a pastiche of historical tidbits which jumble 'together all resemblances
to past styles.[135] Happenings
and media images dominate and there is a collapse of a sense of time making
everything appear instantaneous.[136]
It is accompanied by a nostalgic impulse for the past[137]
and at the same time by an international cultural eclecticism.[138]
-
a complex relationship with popular culture. 'Postmodernism then signals
nothing more than the logical extension of the power of the market over
the whole range of cultural production with advertising as the official
art.'[139] There is a constant play
with masking and viewing, seen in architecture with reflecting glass surfaces
that hide the geographic site, and in law with the interplay between privacy
and the right to know.[140]
-
Categories are, of course, methods of organising thought. They may not
be directly related to what is 'out there'. In applying these categories
to the contents of Australian company law journals their flexible, or accordion-like,
nature means that unstated bias has a wide scope in which to play. The
categories could be regarded as another example of Stone's categories of
illusionary or competing reference. Yet a significant amount of writing
appears to reflect these themes. Can a paper on postmodernism seek to prove
its case rather than just leave an impression?
-
Methods of organising thought are also fabrications. The analysis which
follows involves another fabrication and an invitation. A point of view
for the Samuel Griffith Society is constructed out of papers read by authors
at its conferences. That view is attributed to the Society. That this is
a valid fabrication is indicated by the consistency of the points of view
expressed by these speakers. The Samuel Griffith Society, with some exceptions,
does not give the publicity of its platform to people who hold points of
view opposed to its conservative principal purposes. The reader is then
invited to extrapolate those views to what the authors of these papers
would say about company law, a topic on which they have chosen not to speak.
As they have chosen not to speak on this it may not be considered a valid
invitation. I suggest it is as there is no obvious reason in their approach
to law to see why these views would not continue into company law. I would
also suggest that the reason for the absence of company law and corporate
governance as subject matters is that the directors of the public companies
which fund the Society do not regard these topics as ones about which they
wish to promote a public debate.
A. The absence of
universal truths and the fragmentation of knowledge
-
Universal truths, or metanarratives, are impossibilities.[141]
There is no universal reason why this is so. Foucault emphasises the interplay
between power and knowledge which makes it impossible to escape the consequences
of knowing and administrating. He denied that power is ultimately located
within the state but that it is built up in the systems of knowledge 'which
codify techniques and practices of social control and domination within
particular localised contexts.' This cannot be explained by any overarching
general theory. The resistance to power must also be at the local level.[142]
Lyotard also denies any universal truths by emphasising the infinite number
of language games in which social subjects seem to dissolve. He argues
that the social bond is linguistic but that it is not woven from a single
thread but by an 'indeterminate' number of language games. Individuals
have open to them different sets of language games depending on context
and this often obscures the location of any power. This contrasts with
the rigidities with which institutions, including the law and companies,
seek to close and limit what is said within their boundaries. But even
the 'limits the institution imposes on potential language "moves" are never
established once and for all.'[143]
This theme is not without paradox. Incredulity towards metanarratives is
'at least as old as the Enlightenment' and, as Lyotard concedes: 'Are we
not telling, whether bitterly or gladly, the great narrative of the end
of narratives.'[144] It has long
been recognised by some legal writers that law could never be universal.[145]
-
One valuable insight from this for students is that there is not one basis
on which rights are justifiable. The holders of rights are exposed when
there is a change in financial and property arrangements underlying the
law. They are the ones in danger of being displaced as rights are seen
to be more legitimately held by others. But even in a time of rapid change
in economic paradigms the law permits people to retain rights or property
when others more powerful and more closely connected with the state wish
to have it.
-
Related to the absence of universal truths, postmodernism is marked by
the total acceptance of the emphemerality, fragmentation, discontinuity
and chaos of human knowledge which appeared in modernism. Its presence
is admittedly ambiguous. It may represent a continuation of modernism or
it may represent the revolutionary rise of a previously latent idea.[146]
As Lyotard noted the interrogation of reason over whether there is 'one
massive and unique reason' continues a century-old process. The result
may be that 'there are only reasons or a plurality of rationalities.'[147]
Vattimo has a different emphasis on rationality. He argues that the modern
was driven by the idea of progressive enlightenment which would 'overcome'.
It developed through more complete examinations of its foundations. It
becomes impossible, however, to overcome the foundational element of 'overcoming'.
This means that there is no other language, knowledge or thinking which
we can use. Our perception of this can change and postmodernism represents
an attempt to come to terms with the 'errancy of metaphysics' which leads
to a weakening of the power of thought.[148]
This is intensified by the proliferation in views and 'irresistible pluralization'
of interpretations which remove any sustainable assumptions which could
be made between images which are 'information-media-generated' and the
real world.[149]
-
This fragmentation appears to be opposed by members of the Samuel Griffith
Society. Or, to be more accurate, some would concede that it is true of
the present state of the law because of the rejection of earlier standards.[150]
There is, however, no ambiguity about its position on universal truths.
To read its proceedings is to find a sea of values and principles described,
almost invariably, as 'fundamental'. It is often used of Samuel Griffith's
Constitution[151]
but there are host of others: the High Court's fundamental role is to 'maintain
the federal balance';[152] no court
may make 'a change in the law so profound and far-reaching as to require
the authority of the legislature';[153]
the Queen is an indispensable part of the legislature;[154]
a bicameral legislature is a universal requirement to secure the liberty
of the people;[155] and, that a
fundamental principle of federalism is competition between the federated
entities.[156] There is generally
no doubt that truths about law are universal. Indigenous peoples, particularly
those of Australia, should not expect their misunderstandings to be tolerated
although one non-member has spoken on 'cultural relativism' in this context.[157]
-
Generally the approach in Australian company law journals follows more
the themes of the English rather than the American law review. Goodrich
says of the richness of theory in the American law review:
Yet this is no greater a sin of overconsumption than any other aspect
of the American commodity market, it is indeed relatively liberal, pluralistic
and free of xenophobia whereby the English (legal) academy steadfastly
resists the incursions of the foreign or otherwise 'unsound' theories.
At the same time, however, there is a sense of ironic disorientation that
accompanies much of this work. The translation of continental theory is
market led and subjects critical scholarship to a breathless journalism
which follows the immediate fashions one after another like papparazzi.
One name gives way to another while cultural memory dissolves into the
immediacy of the limelight: we can all be critical scholars for fifteen
minutes.[158]
-
It is demonstrated by the variety of perspectives on writing on corporate
law and securities regulation. Although the dominant tone is still the
search for the one right answer based on a great metanarrative. Many writers
still see the evolution of law as a movement towards increasing perfection.[159]
Others express surprise at the failure of fundamental principles to emerge
on a closer examination of an area of law.[160]
Increasing numbers of articles tease legal doctrine apart to show how it
consists of a tension between competing principles.[161]
Others frankly recognise how doctrinal law is used in a counter intuitive
way or ignored.[162]
-
Other narratives are appearing. Feminist perspectives are amongst the most
prevalent. So that both company law students and members of the Samuel
Griffith Society will read that 'the business corporation is a perfection
of the masculinist version of self - existence as property, separation
of accountability and enjoyment, abstract rules of justice, domination
as ownership' and that before significant amounts of women become directors
the culture which legitimates the company at present will need to change.[163]
Others seek to reveal the patriarchal and masculinist biases in corporate
law which are gendered by concepts such as 'objectivity' and 'rationality'.[164]
Anglo-Celtic Australians are reminded of their cultural boundedness and
inability to avoid cultural bias as they read increasing numbers of articles
in these journals about company law in Asia.[165]
B.
Interpretative communities
-
Autonomous interpretative communities are important in understanding what
determinacy there is in knowledge and communication. Foucault called them
'heterotopia'. These are both juxtaposed or superimposed worlds in which
the people present no longer consider how they can solve the mystery of
the world's existence but are forced to ask 'Which world is this? What
is to be done in it? Which of myselves is to do it.'[166]
Lyotard also noted that the variety of language games meant that 'local
determinism' will exist in 'patches' within institutions.[167]
But within them indeterminacy also flourishes.[168]
-
Interpretative communities have also been used by Habermas to resist the
fragmentation of knowledge and the absence of universal truths associated
with postmodernism. This acceptance of hermeneutics as a grand narrative
excludes him from postmodernism as described by writers such as Lyotard:
Is legitimacy to be found in consensus obtained through discussion
as Jürgen Habermas thinks? Such consensus does violence to the heterogeneity
of language games. And invention is always born of dissension.[169]
-
Habermas sought to support the rationality of the Enlightenment by challenging
the consequences of Weber's concerns in western thought.[170]
He supports, however, those who claim that the methodology of the empirical-analytical
sciences applied to the historical-hermeneutic disciplines led to false
'objectivism' and 'scientism'. He distinguished these disciplines from
science by their practical interests in furthering understanding. Both
are marked by a 'false universalism' which must be guarded against by 'testing,
challenge and rational evaluation' and an 'emancipatory cognitive interest'
which he labels 'self-reflection'.[171]
He argued:
The historical-hermeneutic sciences gain knowledge in a different methodological
framework. Here the meaning of the validity of propositions is not constituted
in the frame of reference of technical control ... Access to the facts
is provided by the understanding of meaning ... The verification of lawlike
hypotheses in the empirical-analytical sciences has its counterpart in
the interpretation of texts. Thus the rules of hermeneutics determine the
possible meaning of the validity of statement of the cultural sciences.[172]
-
He, however, argues that the claims of the participants in these disciplines
have to be evaluated not only against their 'good reasons' but also 'with
reference to "our" standards of rationality. ... We are always in danger
of being ethnocentric, but we never escape the horizon of rationality.'[173]
Interpretative communities have been used within the discipline of law
to seek to save it from indeterminacy by Fish and other writers. Teubner,
in his description of law as an autopoietic system, also constitutes it
as an interpretative community. Ironically the supporters of autopoiesis
may form their own interpretative community because of the obscurity of
their language.[174]
-
The speakers at the conferences of the Samuel Griffith Society are familiar
with the concept of the interpretative community but it is something which
other people, and not themselves, compose. It is formed by 'scholars questioning
how contemporary Australian society can best be reflected in our political
conventions and institutions' and wishing to introduce into it 'women,
blacks, indigenous peoples and other groups'.[175]
This is demonstrated by the interpretative community formed by the History
Department of James Cook University and the High Court on the matter of
native title.[176] Another, much
larger group, the 'chattering classes ... are a danger as well as a pest,
and there are real prospects they may impair the very Constitution
we are all concerned to preserve.'[177]
Feminists compose another, but less dangerous community, which can be ridiculed.[178]
The specialist arbitration courts and trade unions also constituted such
a community in which 'artificial doctrines' gave 'Australian trade unions
a strength greater than that which they have almost anywhere else in the
world.'[179]
-
In the company law journals the complexities of the company, corporate
law and regulation can be seen to constitute a number of interpretative
communities. Postmodernism has drawn attention to 'our attraction to simplifying
categories; our own contests over power including contests over what version
of reality prevails'[180] and the
imprecision of language.[181] The
result has been a Babel as legal writers have been driven to use language
which impedes communication. It has made it difficult for lawyers to talk
together or to other disciplines.[182]
Wishart has observed that '[c]onferences of corporate law teachers across
Australia resemble reunions of dysfunctional families: there is rarely
a cross word but no-one communicates.'[183]
There are accusations of misunderstanding within the interpretative community
and disagreement over what, if anything is to be done.[184]
Changes in company law are so rapid that they are difficult to remain abreast of.[185]
Rapid change also disrupts settled interpretation of the law.[186]
-
Which community is interpreting the law has been a significant theme. Wishart
suggests that the community the Corporations
Law Simplification Task Force was writing its revised law for was 'Crocodile
Dundee in town ... [who] spurns advisers (especially legal ones) as wasteful
parasites upon society.'[187] The
failure of the interpretative community of the courts to agree about the
Corporations Law has troubled the regulators and company law practitioners.[188]
Others worry about the expectation gaps between the various communities
involved in companies.[189]
C.
A focus on knowledge and the exercise of power
-
Postmodernism has focused not only on knowledge and its communication but
also on their relationship to the means of exercising power in post-industrial
information based societies.[190]
Knowledge can be coded in increasingly more ways to make it more, or less,
accessible.[191] As noted above
by the 1960s companies were already seen as mechanisms for processing information.
Cybernetics, particularly through theories of autopoiesis, can be used
to model both legal systems and corporate system. Capital itself, in the
form of money, can now be reduced to 'a set of digital messages'.[192]
Foucault locates power outside the context of the state and concerns himself
with power in localised institutions and so bypasses the privileged status
of Marxism as the mode for analysing capitalism.[193]
This has significance both for companies within the state and international
companies which exist, at least in part, outside any state boundaries.
-
The focus of conference papers given at the conferences of the Samuel Griffith
Society, with their preoccupation with the High Court's decision on native
title and constitutionally implied rights, have come to inevitably explore
the relationship between the power of the High Court exercised through
the language of its judgments and the judges who constitute the court.[194]
Cooray observes, in a metaphor all teachers of company law will understand,
that 'The knowledge of law demonstrated in the Murray Islands case would
earn one out of ten from me if I was correcting an undergraduate essay.'[195]
Cooray does not indicate whether this is the mark he would give before
or after the High Court decided Mabo (No 2). The 'ideological correctness'
of the language of the court excites Christopher Pearson as there 'is a
terrible danger when civilisation becomes enmeshed in a linguistic contour
which no longer matches the landscape of fact.'[196]
Other papers dwell on the conservative preoccupation with the people who
exercise power.[197] This focus
is a forbidden approach for the society, not at least when done in respect
of these decisions. This is not surprising. Law and the courts involve
decision making and interpreting language about power. Foucault's insight
is not specifically approved of but it could be argued that the basis on
which the society is founded is that power in localised institutions such
as itself can be used to influence other institutions.
-
Also not surprising, given the significance of corporate capital, is that
the postmodern theme most prevalent in company law journal articles deals
with communication and means of exercising power.[198]
This was a dominant topic in legislative law in the early 1990s. The CL
was intended to address it:
There have been widespread abuses of the existing company accounting
and reporting requirements under which the true financial position of a
group of companies has been able to be disguised by "off-balance sheet'
reporting. This has enabled the financial statements of the company to
be manipulated in such a way as to mislead investors and the market generally
regarding the real level of liabilities or performance of the company or
the group as a whole ... One of the consequences ... has been a significant
loss of investor confidence, both amongst Australian and overseas investors,
in the reliability of corporate financial information in Australia."[199]
-
Little discusses the interrelationship between information and power in
the context of takeovers.[200] Baxt
has explored the subtleties of their interaction where a director with
knowledge delegates the action to others.[201]
In the context of Eisenberg's paradox, that directors have neither the
time nor the resources to manage the company and can only monitor others
do it, Whincop considers the economic benefits of having directors choose
'not to know' as they administer.[202]
Fridman examines the internal corporate procedure for ratifying breaches
of directors' duties which involves 'unclear and obscure law'.[203]
Langton notes the interrelationship between information and the concept
of corporate control used by the court in the context of the demutualisation
of the NRMA.[204] The topic is returned
to repeatedly in articles on corporate governance[205]
including Hill's study of director's remuneration.[206]
The attempt by the Murdoch family to introduce 'super voting' shares led
to a refocus on the significance of voting power.[207]
-
The regulation of companies and securities trading has traditionally focussed
on the communication of information. The first English joint stock company
legislation required the disclosure of information as a means of countering
abuse by promoters and directors of their powers. This has become a continuing
story but in recent years there has again been renewed focus and law-making
in these areas with continuous disclosure requirements and changes to prospectuses.[208]
Other information, outside the requirements of the law, is compiled to
reveal patterns of share ownership and corporate control.[209]
This is consistently recognised in articles dealing with institutional
investors and the information and power which comes from their interlocking
directorships and shares.[210] Corporate
governance remains an uncertain term at the centre of an increasing debate.[211]
-
The scope for law to be moderated by influence and negotiation is recognised.[212]
The journal articles also reflect a common pattern with other common law
jurisdictions in the limited way in which criminal law is involved in this
analysis. This has been a focus of research since the 1940s when Edwin
Sutherland commenced to research and theorise about white collar and corporate
crime.[213] It still stands, however,
on the periphery of criminology. There is difficulty in researchers accessing
data except where proceedings have been taken in criminal justice process.
Other regulatory domains see criminology and its interests as marginal
to their concerns and the financial services sector has been particularly
under-explored compared with health and safety areas.[214]
It is generally believed to be under-detected and under-prosecuted.[215]
Longo, for example, noted the considerable increase in the legal power
of regulatory agencies since 1957 and the related diminution of the rights
of suspects with no apparent increase in successful prosecutions or deterrence.[216]
Self-regulation and its relationship with such crime is rarely investigated.[217]
The indeterminacy which can be produced in civil law by self-regulation
is discussed by Magarey and Spender.[218]
The knowledge and power of the courts, and since the CL came into force
the AAT, are also discussed.[219]
-
The extensive articles on takeovers return regularly to knowledge and power.[220]
The power of directors is recognised as intimately involved with what they
know and what they do in takeovers.[221]
The information available to participants is recognised as being manipulated
in a number of ways.[222] Takeovers
are also subject to quantitative research to get a feel for the movement
of capital. This is also the theme of the large number of articles on the
compulsory appropriation of the shares of minorities. It is recognised
that knowledge about other rules may circumvent the rules about compulsory
acquisition.[223] The brutality
of the words 'compulsory acquisition' is deconstructed by Digby who believes
that they are unconducive to the appropriate use of the provisions.[224]
Hill reminds us the minority shareholders do have reasonable expectations
about how they will be treated.[225]
Information about the value of the company may defeat the power of courts
to give an adequate remedy.[226]
McLeish shows the masking and unveiling in the way we reveal and conceal
the identity of shares as property or an entitlement to an amount of capital
which will produce a particular stream of income.[227]
D.
Deconstruction and the death of the author
-
Modernist thought presupposed that there was a very close relationship
between what was said, the message or the signified, and how it was said,
the medium or the signified. Language was often assumed to be transparent
or clear and that it effaced itself in the communication between the speaker
and the hearer.[228] Deconstruction,
developed by Derrida out of the work of Heidegger, depicts these as 'continually
breaking apart and reattaching in new combinations.'[229]
The link between the signified and the signifier can no longer be seen as
singularly determined but as constantly redetermining itself with each
reader so that cultural life can be seen as a series of texts intersecting
with others.[230] Derrida pointed
to the logocentric nature of western thought which seeks to place one concept
or word at the centre of meaning. He drew on Saussurean linguistics to
show that no word or concept is self defining but are determined and understood
by their place in an order of concepts or words and their difference from
the other concepts and words. They are determined by what they are not.[231]
He coined the term différence to describe this conceptual impurity
'economy of traces' - which is suggestive of the French verb différer
which means both to differ and to defer in time. It denotes not only the
exclusion and setting up of different meanings but also to the fact that
any meaning given is not presently complete as another meaning will have
come before it and another one will come after it.[232]
The play of differences supposes, in effect, syntheses and referrals
which forbid at any moment, or in any sense, that a simple element be present
in and of itself, referring only to itself. Whether in the order of spoken
or written discourse, no element can function as a sign without referring
to another element which itself is not simply present. The interweaving
results in each element ... being constituted on the basis of the trace
within it of the other elements of the chain or system.[233]
-
Collage and montage become the dominant way of seeing postmodern discourse
with the power of the author of each piece to determine the meaning of
each piece broken or, deconstructed.[234]
This reconstitution of the text and the language of the text has led to
what Barthes and Foucault call the death of the author.[235]
The idea that meanings change every time they are used is older than post-structuralism.[236]
This is significant for law with its multitude of different documents and
discourses: "if words are only defined contextually, if there are no pure
positive meanings, indeterminacy can be seen as a result of the process
of meaning, and of the various strata which form meaning."[237]
-
It is arguable that western law and the common law, with its adversarial
techniques in particular, use deconstructive techniques.[238]
Balkin observes that:
Lawyers should be interested in deconstructive techniques for at least
three reasons: First, deconstruction provides a method for critiquing legal
doctrines; in particular, a deconstructive reading can show how arguments
offered to support a particular rule undermine themselves, and instead,
support an opposite rule. Second, deconstructive techniques can show doctrinal
arguments are informed by and disguise ideological thinking. This can be
of value not only to the lawyer who seeks to reform existing institutions,
but also to the legal philosopher and the legal historian. Third, deconstructive
techniques offer both a new kind of interpretative strategy and a critique
of conventional interpretations of legal texts."[239]
-
DeMott, for example, has considered whether the reluctance by the Delaware
Chancery Court to find that directors have acted in bad faith is because
the courts
have effectively defined bad faith to mean something other than an
absence of good faith. Such a definition might require the party challenging
a decision to establish that those making it acted with malice - that is,
with a demonstrable intention to inflict injury.[240]
-
The conference papers of the Samuel Griffith Society indicate that deconstruction
is a basic tool of legal argument[241]
as does the extensive use of its techniques, without necessarily acknowledging
the label, in the pages of Australian company law journals. Similarly as
the society believes in the version of Sir Samuel which fits their objectives
the writers of its conference papers are constantly inventing an original
intention in deceased authors which favour their present position.[242]
-
Concern about issues of interpretation, particularly of intersecting but
unrelated texts is part of the staple of law. Few articles appear in these
journals which do not raise this issue in one way or another. The most
complex, because of the number of points which intersect, is directors'
duties. There is an extraordinary volume of writing on basic interpretation
of the common law rules of honesty and propriety.[243]
The context in which information is conveyed is important.[244]
McEwin argues that there is insufficient information available for shareholders
or the courts to set appropriate standards for directors.[245]
Baxt has observed the interaction of context with procedural law when shareholders
do seek remedies against directors.[246]
-
That each of us interprets the law as we read it rather than as it is written
indicates an awareness in law of the death of the author. Most authors
in these journals are aware of competing interpretations of the text and
that the intention of the writers are masked by the text. Simmonds considers
this in the context of the CL and the Corporations Law Simplification Taskforce and the way in which the inclusion of securities and charges in the CL privileges company law when the CL is
interpreted.[247]
E.
Ethics and sustaining a continuity of values and beliefs
-
Ethical problems which arise from the absence of universal values and beliefs
haunt postmodernism in a paradox. To seek for coherent universal representation
and action is either, at its best, illusionary or, at its worst, repressive.[248]
Paradoxically this does not mean that a quest for justice is to be abandoned.
Derrida's view is that his deconstruction technique is about justice and
almost nothing else.[249] Repression
has to be considered with moral and political values built into it. Derrida
argued that while 'consensus has become an outmoded and suspect value ...
justice as a value is neither outmoded nor suspect' but he did not explain
how it had continued to be a universal value untouched by the language
games he describes. He concludes that we 'must arrive at an idea and practice
of justice that is not linked to that of consensus.'[250]
Knowledge and ethics are not necessarily directly connected. For Lyotard
there is no necessary relationship between 'correct' theory and 'good'
decisions. Foucault also sees that there are ethical problems which stand
outside the domain of knowledge.[251]
Others resort to the pragmatism of Pierce and James used by their legal
contemporaries such as John Dewey which became, in law, associated with Realism.[252]
Neo-pragmatist beliefs, which differs from that of Pierce and James,[253]
led to Rorty's statement that we can only act 'within the confines of some
local determinism, some interpretative community, and its purported meanings
and anticipated effects are bound to break down when taken out of these
isolated domains.'[254] Rorty denies
the possibility of universal laws or foundational constraints to govern
modern interpretation and analysis.[255]
His response of what to do is similar to Foucault's analysis of localised
power and resistance outside the state. It is also associated with the
sense of the 'the loss of historical continuity in values and beliefs or
even disbelief.'[256]
-
Neopragmatism has been defined as: "an attempt to replace the notion of
true beliefs as representations of the 'nature of things' and instead to
think of them as successive rules of action."[257]
In this form it is sometimes described as irony. Ironist theorists are
distinguished by three features:
(1) she has radical and continuing doubts about the final
vocabulary she currently uses, because she is
impressed by other vocabularies,
vocabularies taken as final by people or books she had encountered;
(2) she realizes that argument phrased in her present vocabulary
can neither underwrite or dissolve these doubts;
(3) insofar as she philosophizes about her situation, she
does not think her vocabulary is closer to reality
than others, that it is
in touch with a power not herself.[258]
-
Posner, closely associated with the basis for a neo-classical law and economics
analysis of company law has succumbed to Rorty's postmodern pragmatism.[259]
-
The speakers before the Samuel Griffith Society on this issue appear to
be like many others. They are reluctant to give up a belief in universal
values but are willing to act pragmatically. Pragmatism has often been
a matter of pride in the common law. The same tension can be seen in the
writers of journal articles on company law. This is particularly so in
respect of corporate management. Cupidity and gullibility appears to be
older than the corporate form.
-
The 1980s saw, in a number of common law jurisdictions, major frauds in
the management of a number of large companies. There was widespread recognition
that this could not be prevented by the law alone so that there have been
a number of business groups working on a statement of ethics for directors.
Stock exchanges have also embodied such standards, in a non-compulsive
way, in their Listing Rules in the locality of 'disclosure' so that shareholders,
or possible shareholders, are informed. These ethical issues are frequently
referred to in the literature on directors' duties including Nicoll, who
observes that they represent an acknowledgment of the inadequacy of law.[260]
They have intruded themselves into neo-classical economic and contractual
analyses of the company.[261] Directors
remuneration is widely discussed in the context of whether it is excessive
for the work performed.[262] Other,
non-legal changes, are also seen as significant in infusing ethics into
the locality of 'directors boardrooms' amongst which are institutional
investors.[263] The issues recur
in articles on conflicts of interest[264]
and Chinese walls.[265]
-
The related theme of the difficulty of sustaining a continuity of values
and beliefs is also dealt with in the journals. Whether the NRMA demutualisation
was a takeover by having all the members resign or the exchange of rights
with no commercial value for rights with such value are specifically considered
and found to depend on the position of the observer.[266]
It recurs in the context of conflict between the CL and standards provided
in legislation dealing with government enterprises.[267]
The point is made again in respect of Hong Kong and its Confucian family-based
concept of wealth as opposed to the individualism of the west and the cultural
aspects of interlocking company directorships in Hong Kong.[268]
Kamarul identifies pragmatism in the reform of Hong Kong company law to
accommodate this.[269]
F. Schizophrenia
-
Postmodernist writing is claimed to be marked by the centrality of schizophrenia
rather than paranoia and alienation as its underlying psychological presupposition.[270]
In psychiatry schizophrenia is associated with 'forms of mental illness
characterised by a lack of connection (splitting of the mind) between mental
functions, which seem to the observer incongruous with one another and
not understandable'.[271] Alienation
has the sense of 'a loss of connection with one's own deepest feelings
and needs' and it was the dominant motif of modernism .[272]
Paranoia is a form of psychosis associated with delusions of grandeur and
persecution and sometimes accompanied by hallucinations.[273]
These terms have been used outside psychiatry as thematic concepts and
postmodernism is described as schizophrenic as it concentrates on the fragmentation
and instability of personality, motivation and behaviour.[274]
Barthes, for example, suggests that we concentrate on 'jouissance', a 'sublime
physical and mental bliss'.[275]
The theme has been developed by Lacan and Jameson in terms of a linguistic
disorder in which the signifying chain of meaning in a simple sentence
snaps. When it breaks 'we have schizophrenia in the form of a rubble of
distinct and unrelated signifiers.' It is a metaphor for our inability
to 'unify the past, present and future of our own biographical experience
or psychic life.' It is also a metaphor for contemporary concern with participation,
performance and happening more than the finished work, for concern with surfaces
rather than roots. Derrida's deconstructive techniques manifest these tendencies.[276]
It leads to an abandonment of the idea of progress and continuity and memory
and the past is plundered to find there some aspect of the present.[277]
History becomes archaeology as its remnants are dug up to be displayed
in the museum of modern knowledge.[278]
-
Alienation is still the preferred diagnostic metaphor at the Samuel Griffith
Society's conferences. It is produced by the centralising of power in Canberra.[279]
People wishing to interfere with Sir Samuel's Constitution
suffer from mania:
'an abnormal mood shift or excitement which afflicts people in the
grip of an idea'.[280]
-
Hardly surprisingly directors duties have the metaphor applied directly.[281]
The law, and the community of company law practitioners have been schizoid,
in the sense of tying a string with one hand as they undo it with another,
for several centuries. A recent example is the use of capital reductions
and schemes of arrangements to avoid the takeover provisions which other
lawyers argue should apply.[282]
The regulatory choice is observed between strict, or lenient, enforcement
of the law or enforcement which is inconsistent and which has no relationship
to the purpose of the law.[283]
The incoherence produced by the interaction between company law and state
regulation and practice in Asia is observed.[284]
G.
Immediacy: the determinism of the new
-
The schizophrenic state of postmodernism leads to a concentration on the
spectacle which can only be judged on how spectacular it is. The 'experience
of the present becomes powerfully, overwhelmingly vivid and "material":
the world comes before the schizophrenic with heightened intensity, bearing
the mysterious and oppressive charge of effect, glowing with hallucinatory
energy.' The world is 'a series of pure and unrelated presents.' [285]
Immediacy is the only thing left. This is the rule of the sensational and
the spectacle in place of memory and historical continuity. There is a
loss of depth and a fixation with appearance, surfaces, and instant impacts
that have no sustaining power over time. Art reflects this 'contrived depthlessness
in writing, painting, photography and architecture.[286]
All disciplines share the same fate in the leading medium, television.
Taylor describes it as the:
first cultural medium in the whole of history to present the artistic
achievements of the past as a stitched-together collage of equi-important
and simultaneously existing phenomena, largely divorced from geography
and material history and transported to the living rooms and studios of
the West in a more or less uninterrupted flow.
-
It presumes that the viewer 'shares the medium's own perception of history
as an endless reserve of equal events.'[287]
Baudrillard and Vattimo also place considerable emphasis on the impact
of the media and see it as contributing to the decline of the modern as
it destroys belief in 'the fundamental value to which all other values
refer'.[288]
-
Harvey argues that this is not to be reduced to a deterministic 'television
produced postmodernism' but that both are the product of the culture of
consumerism of late capitalism. Charles Newman attributed it in part to
inflation which affected all ideas of exchange and not just commercial
markets.[289] Jameson, using Mandel's
model, argues that capitalism has undergone a transformation since the
1960s in which culture 'has become increasingly integrated into commodity
production generally: the frantic searching for fresh waves of ever more
novel seeming goods (from clothes to airplanes), at even greater rates
of turnover, now assigns an increasingly essential structural function
to aesthetic innovation and experimentation.'[290]
This leads to us living in a pastiche of historical tidbits which jumble
'together all resemblances to past styles.'[291]
Happenings and media images dominate and there is a collapse of a sense
of time making everything appear instantaneous.[292]
It also leads to an increasing 'weariness with regard to "theory", and
the miserable slackening which goes along with it (new this, new that,
post-this, post-that, etc).'[293]
-
There is a nostalgic attachment to the past. Vattimo sees this as part
of a quest for the reassuring which has to be overcome so that we can respond
positively to the contingent as 'a new way of being (finally, perhaps) human.'
There is an international cultural eclecticism. As Lyotard observed: "Eclecticism
is the degree zero of contemporary culture: one listens to reggae, watches
a western, eats McDonald's food for lunch and local cuisine for dinner,
wears Paris perfume in Tokyo and 'retro' clothes in Hong Kong."[294]
-
Still present in this eclecticism, as Baudrillard observed, is the idea
in western culture that it is in itself 'a culture in the universal' and
all other cultures have been 'entered in its museum as vestiges of its
own image.'[295]
-
The Samuel Griffith Society does show a nostalgic impulse for the past
in its hope of restoring the authority of parliament against the executive
and 'the increasing centralisation of power in Canberra'.[296]
There has been a shift in the effect of great principles:
The rule of law which once meant government, subject to known and stable
laws and the
Constitution, is today used to legitimate the momentary will of government.
Rule by law has replaced the rule of law.[297]
-
The most moving paper in this genre is by Paul Hasluck.[298]
Some of the conference papers are pastiches of tidbits of history.[299]
Others are made of pieces of law and other disciplines with an international
comparative aspect.[300] This latter
aspect in other contexts is objectionable if it affords support of 'special
interest groups.'[301] The pastiche
can also produce otherwise unimaginable crises in indigenous affairs.[302]
The staple is some immediate and pressing crisis in law the magnitude of
which is directly proportional to the recency of the date on which the
High Court gave it. The rhetoric used is calculated to produce media headlines
of the same size.[303]
-
Students of company law are likely to come across the pursuit of the immediate
with a tinge of nostalgia in teaching material as well as in the law journals.
-
The determinism of the new is raised by the continuous disclosure provisions
of the CL and the relationship with the ASX Listing Rules.[304]
Short-termism appears in articles about legislative and regulatory responses.
When major corporate news stories and scandals break there is a pattern
of knee jerk reaction with attention soon diverted. It is not so apparent
in the common law processes of the courts as matters usually take some
time to reach them. The common law process, apart from the interlocutory
orders which have expanded exponentially in recent years, is generally
regarded as being time consuming.
-
The international eclecticism in corporate law and securities regulation
flowing from increasing multinational companies and transactions is clearly
visible. There are occasional nostalgic impulses to revisit the past.[305]
Practices and legal rules are routinely borrowed from different jurisdictions.
New Zealand has recently enacted new company legislation based on that
of North America. Australia has been toying for some time with the North
American concept of the derivative action.[306]
It abandoned a proposed business judgment rule only to return to it.[307]
Considerable attention has been paid to Asian company and securities law.[308]
The problem of the extraterritorial application of the Corporations
Law is frequently considered in the context of 'globalisation.'[309]
A problematic concept which is also discussed.[310]
H.
Popular culture
-
The determinism of the new leads to a complex relationship for company
law with popular culture. Knowledge about a company and its securities
has been subject to the power of the market since the ancestors of companies
first issued shares. Since the end of the seventeenth century in the English
speaking first-world that knowledge became a more easily exchanged commodity
with the establishment of stock exchanges. Law became involved in this
at various times but systematically from the eighteenth century, the equity
courts, and from the nineteenth century, the executive government, have
concerned itself with the communication of that knowledge to members, and
possible members, of the company. Company law and securities regulation
also regulate the firms which market popular culture. Both fields of law
show, in globalisation and the borrowing of rules and concepts, the power
of the market in legal concepts.[311]
-
Lyotard observes that for the past fifty years the main scientific and
technological activities of western states has been to do with language.[312]
This has led to a transformation in the way in which we gain and view knowledge.
Knowledge, he claims, has been transformed by these activities and the
developments based on them leading to a situation where they are produced
and
consumed in
the form already taken by the relationship of commodity producers and
consumers to the commodities they produce and consume - that is, the form
of value. Knowledge is and will be produced in order to be sold, it is
and will be consumed in order to be valorized in a new production: in both
cases the goal is exchange. Knowledge ceases to be an end in itself, it
loses it 'use-value'.[313]
-
The expanding numbers and contents of law journals show the pressure to
produce company law commodities. As well as selling information to consumers
the articles and journals advertise individuals and schools. They all have
'use by dates'. This will be familiar to company law students who have
consulted out of date articles. They have the possibility of being recycled
through new articles. Finally the metaphor of masking and viewing which
plays through postmodern art is mirrored in company law writing on the
ever present topics of disclosure and insider trading.
-
Similar themes are to be seen in the Samuel Griffith Society's papers.
The preoccupation with native title reflects the popular concern about
the topic revealed by the polls conducted by all political parties. If
no author of the paper has followed the Deputy Prime Minister in asserting
that if your race has not invented the wheel it has no rights to land there
are similar tabloid arguments based on 'peopling', 'settling' and 'cultivating.'[314]
Conflict over the
Constitution can be rendered into the language of sport.[315]
And the popular topics of the flag and its protection and, the possibly
related topic, multiculturalism also get an airing.[316]
Masking and unveiling is specifically dealt with, in the context of indigenous
culture, rather than Crown Casino.[317]
-
Tomasic introduces masking and disclosing in the context of limited liability
in the manipulation of Phoenix companies by shadow directors and the attempts
by the ASC to reveal this.[318]
The concealment of shadow directorships is covered by others.[319]
Magarey discusses masking in the interplay between the different identities
of a company, its subsidiaries and its directors in varying decisions over
whether they are bound by the ASX Listing Rules.[320]
-
Corporate disclosure is frequently discussed. McQueen reveals to us the
peculiarly Australian experience of non-disclosure in colonial companies.[321]
McGregor Lowndes deals with it in the context of the icon of popular culture
and the 'age of information', the internet.[322]
Insider trading, a criminal offence which enjoys some popular recognition,
raises the same themes in regular appearing articles.[323]
4.
Conclusion: an everyday ethical and reflective practice
Whatever else we do with the concept, we should not read postmodernism
as some autonomous artistic current. Its rootedness in everyday life is
one of its most transparent features. Harvey D, The Condition of Postmodernism:
An Inquiry into the Origin of Cultural Change (Cambridge, Mass: Blackwells,
1989) 63.
-
Reviewing the 'vast, growing and complicated area of legal regulation'
which marks Australian company law writing Katherine Hall observes that
the lack of emphasis on corporate law theory seems striking. Whilst
journals are full of articles calling for reform of various aspects of
law, there is surprising lack of discussion on the bigger questions of
how we view corporations and why (or whether) we consider they are important."[324]
-
She identifies 'post-modernism' as one of a number of schools of legal
thought such as critical legal studies, critical race theory and feminism
and assigns it to movements in literature and the arts.[325]
Postmodernism is arguably the paradigm which underlies these other schools
which are symptomatic of the end of a belief in objective reason which
challenges the isolation of law from other disciplines she goes on to note.[326]
It is difficult to dispute her conclusion that most writing on company
law in Australia is within a liberal tradition.[327]
But whether writers consciously state their theoretical premises, or otherwise
reveal theoretical viewpoints, all legal writing about corporations is
theorised by our 'rootedness in everyday life'.
-
Wishart observes:
There are some corporations law academics who have found meaning in
theory ... At a recent workshop in Canberra papers were given on history,
economic analysis of corporations law, feminist analysis, the sociology
of organisations and corporate law, and comparative corporate law; and
others touched on political and organisational theory. Yet there is a curiosity
here: the research appears little used ... ".[328]
-
It is in this context that he notes the resemblance of corporate law teachers
to members of dysfunctional families.[329]
These are not the sort of people to whom members of the Samuel Griffith
Society are likely to trust the education of the next generation of lawyers.
Our defence, as teachers of company law, is probably that 'the others,
including members of the Samuel Griffith Society, are all the same.'
-
Postmodernism is the concerns and preoccupations of the present which hold
company law in tension at this moment. The articles in the company law
journals demonstrate this. Rob McQueen quoted Michel de Certeau at the
conference David Wishart describes:
The credibility of discourse is what makes believers act in accord
with it. It produces practitioners. To make people believe is to make them
act. But by a curious circularity, the ability to make people act ... is
precisely what makes people believe ... People believe what they assume
to be real ... The law requires an accumulation of corporeal capital in
advance in order to make itself believed and practiced ... In other words,
normative discourse 'operates' only if it already has become a story, a
text articulated on something real and speaking its name ... Its being
made into a story is the presupposition of its producing further stories
and thereby making itself believed. And the tool ensures precisely the
passage from discourse to the story through the interventions incarnate
the law by making bodies conform to it and thus making it appear to be
recited by reality itself."[330]
-
The company law journals reveal this function, and circularity, as they
reveal company law. Students of company law in Australia who read them
will also be able to read all the pages of the Australian Financial Review.
For them law will not be divorced from the culture in which it is imbricated.
It is everywhere. That is the beginning of the ethical and reflective practice
of company law.
