Shaping Conscience Without A Soul: Interventionism, Deference And Libertarian Paternalism In Regulating Corporate Social Responsibility

Abstract

Corporate social responsibility has been of growing concern for companies in recent decades. As corporate contributions to various humanitarian crises become more visible, the societal pressure for companies to present an improved CSR presence has increased. Concurrently, regulators across jurisdictions are exercising an increased willingness to mandate aspects of the CSR process. This paper examines New Zealand’s regulatory interventionism into CSR through several current and proposed legislative measures. Notably, the New Zealand approach has been to prefer light-touch regulation. In the corporate governance space, the Companies (Directors Duties) Amendment Bill currently before Parliament is likely to increase the scope for directors to consider stakeholder interests during decision-making, though without mandating such consideration or affording stakeholders any corresponding enforcement mechanism. Elsewhere, current and proposed legislative measures exhibit the ideals of libertarian paternalism – ‘nudging’ individual and corporate behaviour in optimal directions while preserving commercial autonomy to act contrary to those optimal preferences. Overall, this paper examines the normative justifications for interventionism into CSR, and the policy limits that result beyond that justification.