Book NoteRecension simple

Michael Kerr, Richard Janda & Chip Pitts, Corporate Social Responsibility: A Legal Analysis (Markham, Ont: LexisNexis, 2009)[Record]

  • Michael Torrance

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  • Michael Torrance
    Lawyer with Ogilvy Renault (Norton Rose Group), Toronto
    Co-founder of the firm’s Corporate Responsibility & Sustainability practice group

This treatise on the ambiguous concept known as corporate social responsibility (CSR) is an essential primer for the legal practitioner. With few substantial legal texts in the field to build upon, the authors undertake not just to explain CSR but to define it for the legal practitioner. In so doing, the authors give some much needed shape to the concept while revealing the real lack of clarity there still remains as to what CSR truly entails. While not conclusive, this text provides an immensely useful starting point for what will likely be a highly interesting debate that will challenge the way lawyers understand their role as advisor to corporate clients. The text provides both a theoretical and practical review of a number of developing principles that coalesce into the concept of CSR, and that create an imperative for corporate organizations to seek compliance with societal expectations beyond those expressed by the edicts of legislatures and courts. Structure for the discussion is provided by the authors’ elucidation of seven “CSR legal principles”: (1) Integrated, Sustainable Decision-Making; (2) Stakeholder Engagement; (3) Transparency; (4) Consistent Best Practices; (5) Precautionary Principle; (6) Accountability, and; (7) Community Investment. These principles provide a categorical context to the authors’ discussion of the many multilateral initiatives and private regulatory frameworks, as well as legislative and regulatory interventions and propositions that have been created in the name of CSR. In addition to the useful assemblage of existing CSR-related “hard” and “soft” law falling under each of the seven principles, the authors also bring together a diverse academic literature spanning business ethics, stakeholder management theory, corporate law, and regulatory theory. The authors formulate a thesis (seemingly in two parts) of how CSR ought to be viewed from a legal perspective: as a stakeholder-oriented form of lex mercatoria (customary commercial law), and as a form of “enforced self-regulation in the shadow of the law.” As the duality of the thesis suggests, the authors struggle at times to find definitive conceptual anchors for their subject. Far from being evidence of a shortcoming in the authors’ work, it is instead evidence of the uncharted legal territory into which this book ventures. Reflecting this novelty, a significant amount of consideration is given to the existential question of CSR as a legitimate field of study for lawyers and legal theorists. The text anticipates the criticism that CSR, by nature, is voluntary and therefore lacks the quality of obligation necessary for law. To tackle this question, and indeed to justify their endeavor to the reading audience, the authors point to the empirical facts of corporate adherence to normative frameworks generally referred to as CSR and to the proliferation of CSR standards, multilateral frameworks, and consciousness amongst corporate actors, non-governmental organizations, and governments alike. In light of such trends, the characterization of CSR as a purely “voluntary” concept is misleading. If one can conclude that CSR and related social expectations are perceived, internalized into corporate self-governance, and consistently acted upon or at least referred to as standards of corporate behavior, then the question of whether CSR “ought” to be so viewed is practically immaterial. The focus of the authors moves beyond those increasingly (practically) irrelevant arguments, towards a consideration of the much broader and more fascinating question of how the phenomenon generally referred to as CSR should be understood by the legal practitioner. But even getting past such inhibitions, the authors face the daunting task of defining a very elusive topic, which lacks clearly defined content and defies simple explanation. These challenges may, unfortunately, dissuade a significant portion of the book’s intended audience from giving the text …