* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
"The nascent field of law and social entrepreneurship is critical to the future of innovation for public benefit. Too often social entrepreneurs find that their fresh ideas for social impact are limited by statutory inflexibility and unimaginative counsel. Instead of allowing ingenuity and promise to die on the vine, the legal profession must also imagine and innovate new ways to nourish and harvest the fruits of social entrepreneurship." Ben Cokelet, Founder and Executive Director, Project on Organizing, Development, Education, and Research (P.O.D.E.R.)
Last month the US state of Delaware (a state with more registered legal entities than inhabitants!) passed into law the formation of public benefit corporations, becoming the 19th state in the US to enact this type of legislation. A myriad of articles and interviews cascaded after this event, mostly by lawyers and social entrepreneurs trying to ignite discussions about this initiative’s unpredictable -and intangible- impact (to use the most trite term in social entrepreneurship).
This post is the contribution of a lawyer (now more tempted to define himself as a “social entrepreneur with a legal background: www.microjusticiaargentina.org) troubled by the temptation to acknowledge the entrepreneur in me is now cooler than the once almighty lawyer, proud of the powers I had acquired through the study of law.
This is thus my attempt to ignite one more debate triggered by the news of these nineteen states’ innovative legislative move.
My concern is a vocational one: should a lawyer feel pleased with Delaware’s accomplishment and ok to rhetorically brand it as lawyers’ effort to create value for society? Or should he admit that public benefit corporations are businesses’ (aka “social entrepreneurs”) brainchild and, on the contrary, lagging jurists are only catching up with society by formally acknowledging public benefit corporations as state law? On the whole, are we lawyers actually accomplishing something for society with our practice?
First of all, innovation kudos to “B Lab” and its pioneering “B Corp Certificate!” Secondly, some empirical evidence, as reported by the journalist who interviewed the cofounder of Method, an eco-friendly cleaning products company, about Delaware’s initiative:
“(...) the new corporate form won’t mean the company has to change the way it operates. For Method, which has about 100 employees in North America, legally organizing as a benefit corp is basically symbolic. Lowry says Method’s adoption of the new structure sets an example for other, less-established companies with similar values.”
Thirdly, a historical perspective: it’s unquestionable that corporate personhood (and more importantly its limited liability) is the contribution of ingenious jurists to the boom of the Industrial Revolution. According to George F. Deiser (1908): “The conception of persona ficta is an inheritance from Roman Law, developed and expanded by the ecclesiastical lawyers of the Middle Ages, and bestowed on modern legal thought by Savigny.”
Now, my arguments:
Business, at least as OECD countries understood it during the 20th century, was shaped essentially thanks to the creativity of jurists who developed a framework to globalize and expand businesses without their owners losing control of their enterprises or becoming personally liable while prioritizing profitability.
Practicing law as a successful partner of a big international law firm during the second half of the 20th century must have been as cool as being knighted in the Late Middle Ages. Or at least, all in all, it must have been cooler than being the CEO or top executive businessmen of a multinational listed corporation, accountable to shareholders and the SEC.
But in the first half of the 21st century, nothing seems more en vogue, at least career-wise, than being acknowledged as either a successful social entrepreneur or a philanthrocapitalist. In my opinion, going to law school or practicing international business law not only no longer have the social absolute weight they used to have but has also lost the relative mystique compared to a career in entrepreneurship.
At the Thomson Reuters Foundation, I believe we are taking a stand, with TrustLaw Connect reminding both social entrepreneurs and law firms of how essential lawyers are driving social change. By spreading the practice of pro bono worldwide we are not only enabling NGOs all over the world to run their operations more effectively, scale business, and expand into new countries, but we are also blazing the trail in the legal industry.
I believe that sooner than later law firms (and, hopefully, those in my generation once they become partners) will pay more attention to Duncan Kennedy’s grassroots activism and avoid “becoming a hired gun -that’s what we are talking about, the lawyer as a gun for hire regardless of the morals of the client.” In a nutshell, all Kennedy seems to want is for lawyers to think about what the profession actually accomplishes for society, and whether what the legal system does is worth doing.
In the last century, corporate lawyers were shining stars in the sky of professional success, and many of them –as John Grisham depicts in The Client- only cared about making ridiculous amounts of money from taking care of corporations’ clean or soiled laundry. Hopefully, the 21st century will bring changes in this aspect and practicing law (in latin advocāre: ask on somebody's behalf) will no longer be conceived as a ladder for social mobility but as the tool for social impact.
Our Standards: The Thomson Reuters Trust Principles.
