Enterprise Law and the Eclipse of Corporate Law

Ewan McGaughey

Working Papers from Centre for Business Research, University of Cambridge

Abstract: The corporation is among the most important institutions of our age, and yet it is eclipsed by the enterprise. Corporate law theories have asserted that a corporation is a ‘person’, a ‘nexus of contracts’, that it has ‘proprietary foundations’, or is a ‘concession of the state’. These theories wander across every Roman law category – persons, obligations, property, and public body. None work, because corporations combine elements of each category, but are more. A better tradition sees the corporation as a ‘social institution’, and as one legal form of ‘enterprise’. Corporate law, traditionally confined, is not enough to understand corporations. We must integrate labour, competition, tax, tort, human rights, and public law, because this full body of enterprise law decisively changes corporate finance and governance. It also changes the rights that corporations distribute to investors, workers or service-users. In law, the concept of the ‘enterprise’ (or ‘undertaking’ or ‘group’) has become a dominant legal tool, because it adopts a functional understanding of firms that matches economic reality, eclipsing legal form. In that reality, most major listed corporations are under sector-specific regulation, including in banking, telecoms, big tech, or energy, as are corporations without shareholders such as hospitals or universities. Broadening our horizon enables us to teach how businesses, regulated industries, and public services – all major corporations – actually work. It lays the foundation for accurate empirical research. By shifting our vision to enterprise law, we may contemplate our entire economic constitution as it truly is.

Keywords: Enterprise; corporation; regulation; sector-specific; public services; labour; shareholders; investors; social institution (search for similar items in EconPapers)
JEL-codes: K00 K2 K21 K22 K23 K31 K32 K34 L12 L13 L2 L21 L22 L32 L33 L53 L6 L7 L8 L9 Q1 Q2 (search for similar items in EconPapers)
Date: 2024-09
New Economics Papers: this item is included in nep-his and nep-law
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