191 Integration of perspectives as complementary views.

In my view, the three perspectives co-exist in a fundamental dynamic of complementarity rather than competition. Their complementarity allows for a more complete and nuanced debate on the legal reform that is necessary for the inclusion of social and ecological interests in corporate governance. This general approach to legal reform relates to the question whether the development of Dutch corporate law depends on a polarized dichotomy between two perspectives or whether a more integrative approach is necessary. In contemporary corporate legal debate, corporate legal reform is often dichotomized as a choice between shareholder-oriented or stakeholder-oriented corporate governance.1 In my understanding, using such a dichotomy misses the point of why these different perspectives are so valuable.2 By highlighting different constitutional elements of the corporation, each perspective is able to develop an approach to corporate governance that fits completely with its starting point. Their propositions exhibit internal logical integrity by starting from disparate premises and building their arguments thereon. By virtue of their disparate starting points and internal integrity, the differences between the perspectives actually enable them to be fully complementary as none of them necessarily needs to falsify another. After all, why could corporations not be partnerships, institutions and ecosystems all at the same time?

In my view, the argument that the perspectives in Dutch corporate law complement each other corresponds with the emergence of similar complementary approaches in other fields of research. Starting with an example that is closest to Dutch corporate law, the discussion on the origin of legal personality in nineteenth century German jurisprudence similarly revolved around three approaches to corporations.3 The first approach by Von Jhering considered legal personality to be derived from the aggregate contract between the partners of the corporation, which I argue evolved into the partnership perspective.4 The second approach by Von Savigny considered legal personality to be derived from a legal concession provided by the sovereign, which in my assessment resembles the institutional perspective.5 The final approach by Von Gierke considered legal personality to be constituted in the operational reality of existing organizations as real entities in society, which I argue to be the basis for the ecosystem perspective and its focus on the operational enterprise.6 Although these three approaches emerged in reaction to each other, suggesting their exclusive tendency, I would argue that contemporary Dutch corporate law includes notions which reflect all three approaches and which also suggest their ability for complementarity in the development of corporate law.

In management science, Selznick has influentially proposed a similar distinction between viewing corporations as technical organizations, institutions and open systems or communities.7 Similar to the partnership perspective, technical organizations are an instrument or special-purpose tool, rationally designed to do a specific job.8 In contrast, institutions are a product of social adaptation and a convergence of plural interests, infused with value beyond the technical requirements of the task at hand.9 By diverging from the notion that organizations are instruments to achieve explicit goals, Selznick suggests that a third approach to corporations emerges as open systems and communities.10 Similar to the ecosystem perspective, this third view emphasizes the permeable boundaries of corporations and the complex transactions with the environment on which they depend.11 Selznick emphasizes that these approaches do not contradict each other, but rather suggest an expansive movement from organization, to institution, to community in which the first is included in the latter.12 Selznick therefore equally suggests a threefold variety of approaches to understand corporations which fundamentally complement each other.

In the field of ethics, a similar threefold distinction exists between consequentialist ethics, deontological or rule-based ethics, and virtue ethics.13 Above I argued that these three approaches correspond in important ways to the partnership, institutional and ecosystem perspectives respectively.14 By focusing on efficient value creation, the partnership perspective adopts a consequentialist ethics to legitimize board interference in its environment.15 By contrast, the institutional perspective adopts a rule-based ethics by legitimizing board interference through compliance with binding legal rules.16 Finally, the ecosystem perspective emphasizes the need for boards to serve and preserve the integrity of their corporate ecosystem and its larger environment, corresponding to the approach of virtue ethics.17 In my understanding, these three approaches to understanding ethical behaviour need not exclude each other but can also be viewed as complementary to each other.18

A final example of similar complementarity may be found in the field of urban development, in which Kotkin suggests that cities essentially serve three complementary purposes: economic, political and spiritual.19 Based on a historical analysis, Kotkin argues that successful cities throughout history were able to integrate an economic function of hosting a commercial market, a political function of providing safety and security through legal order, and a spiritual function of maintaining a sacred space connecting the daily city life to larger forces in the world.20 In my understanding, this threefold purpose of urban development resembles the three perspectives in Dutch corporate law. By analogy, Kotkin’s proposition that successful cities rely on the integration of these three purposes suggests that an approach to corporate legal reform may equally require an integration of all three perspectives.

Based on these examples, I want to propose that the three perspectives in Dutch corporate law equally highlight complementary aspects of corporate governance, thereby collectively providing a multi-dimensional understanding of the way in which modern corporations relate to their environment. Building on the historical analysis of urban development by Kotkin, I would argue that the partnership perspective highlights the economic function of corporations to create value for society, the institutional perspective highlights the political function of corporations to provide safety and security to stakeholders through legal order, and the ecosystem perspective highlights the spiritual and vertical function of corporations to honour and preserve the integrity of their environment.

The complementary relationship between the three perspectives in Dutch corporate legal theory therefore gives rise to an integrated tripartite view. A balanced integration of all three perspectives has the potential to motivate comprehensive and fundamental reform of Dutch corporate law. The basic aim of this thesis has been to construct the strongest and most convincing version of each perspective in relation to the inclusion of social and ecological interests in corporate governance.21 By honouring their rightfully disparate approach to corporate governance, I aimed for each perspective to contribute its own valuable insights to the reform of Dutch corporate law. Neglecting one of the perspectives in legal reform would result in both a misrepresentation of corporate reality and an incomplete normative framework for corporate governance. In my assessment, that risk applies to both the potential neglect of the partnership perspective by not sufficiently valuing the contractual nature of corporations as well as the historic neglect of the ecosystem perspective by not sufficiently valuing the factual embeddedness of corporate enterprises in their environment. Therefore, I propose that an integrated approach towards the synthesis of all three perspectives in legal reform is necessary for Dutch corporate law to adequately integrate social and ecological interests.

Such integration should start with the institutional perspective as the ground structure for reform. As earlier discussed, I consider the institutional view (institutionele opvatting) as it currently exists in Dutch corporate law as a combined view of the corporation as both a legal entity (vennootschap) and an operating enterprise (onderneming).22 For the purpose of further theory development, I have suggested to separate these two views into the institutional perspective and the ecosystem perspective respectively. By thus demarcating the ecosystem perspective from the institutional view (institutionele opvatting) in Dutch corporate law, I have aimed to highlight the specific instances in which a more factual view of the corporation as an operating enterprise may differ from a more legal view of the corporation as a legal entity. In so doing, I aimed to provide a comprehensive overview of the different ways in which social and ecological interests could be included in corporate governance. By focusing on the enterprise as it operates in specific circumstances, the ecosystem perspective has proven to be particularly capable of accommodating insights from complex systems theory which adopts a systemic view of corporations as existentially embedded in their social and ecological environment. These insights into the systemic nature of corporations are particularly valuable in relation to the inclusion of social and ecological interests in corporate governance. They complement the opportunities for such inclusion offered by the partnership and institutional perspectives.

Meanwhile, I earlier acknowledged that the institutional view (institutionele opvatting) as it exists in Dutch corporate law has already adopted similar insights from complex systems theory.23 The approach towards integrating the insights developed in this thesis should therefore be aligned with this responsive and adaptative role of the institutional view (institutionele opvatting) in Dutch corporate law.24 In my view, such alignment can be best achieved by viewing the institutional perspective as I have presented it as the ground structure for reform, in which insights from both the partnership and ecosystem perspective can be adopted.25 By thus aligning the approach for reform in this thesis with the existing institutional view (institutionele opvatting), I aim to develop an agenda for reform which fits the continuity of development in Dutch corporate law instead of proposing a discontinuous departure from such development.