Telling Stories Beautifully: Hybrid Legal Forms in the New Economy

DOIhttp://doi.org/10.1111/jols.12079
Publication Date01 Mar 2018
AuthorBronwen Morgan
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 1, MARCH 2018
ISSN: 0263-323X, pp. 64±83
Telling Stories Beautifully: Hybrid Legal Forms in the
New Economy
Bronwen Morgan*
This article explores the expressive and constitutive dimensions of
hybrid legal forms emerging as vehicles for grass-roots innovations
that seek to forge renewed economic trajectories. Drawing on a rela-
tional perspective, it analyses company constitutions, and crowd-
funding offers based on them. It explores the ways in which the
practices of forming a legal entity and raising finance to support its
growth relate to a broader narrative of creating initiatives for a
sustainable economy, one that radically reworks the priority of social
and environmental objectives in economic organizations. A closer
examination of three specific initiatives from Australia illustrates the
ways in which dynamic engagement with legal form can enable, loosen
or magnify relationality. This approach helps illuminate the ways in
which formal legal structure for economic enterprise is both an
inherently regulatory vehicle, but also a site for the mediation and
stabilization of patterns of exchange.
INTRODUCTION
Over the past decade, Anglo-American jurisdictions have witnessed the
emergence and growth of hybrid legal forms for economic enterprises that
blend elements of for-profit and not-for-profit governance. These forms are
important sites in the context of the growing interest within multiple
jurisdictions in commons-based, solidarity, and social enterprise, particularly
where the 2008 financial crisis and subsequent austerity policies have led to
grass-roots innovations that seek to forge renewed economic trajectories.
64
*Faculty of Law, University of New South Wales, UNSW Sydney, Sydney
NSW 2052, Australia
B.Morgan@unsw.edu.au
The research on which this article is based was generously funded by the Australian
Research Council, whose support is gratefully acknowledged, under Future Fellowship
FT110100483.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
There is a paucity of academic literature on hybrid legal forms, and what
does exist tends to focus on their functional or instrumental outcomes. This
article explores their expressive and constitutive dimensions, drawing directly
on primary research in Australia (and indirectly in the United Kingdom) about
community-based sustainability initiatives and grass-roots innovations in
response to climate change challenges. It analyses company constitutions, and
crowdfunding offers based on them, from a relational perspective that
explores their capacity to institutionalize a `new economy'. It explores the
ways in which the practices of forming a legal entity and raising finance to
support its growth relate to a broader narrative of creating initiatives for a
sustainable economy, one that radically reworks the priority of social and
environmental objectives in economic organizations. A relational approach
underpins this analysis, linking the scholarship of Viviana Zelizer on
relational work to Susan Silbey's scholarship on relational regulation.
1
The article takes two steps in order to engage with legal form in a way
that preserves the constitutive and expressive dimensions of acquiring formal
legal status, which confers identity, ethos, and connections between people
and purpose. The first step is to draw on relational literature, and the second
is to focus on Australia, a jurisdiction where as yet no distinct legislated
hybrid legal form exists, and the supportive institutions for cooperative
development have been attenuated until very recently. The combination of
these two steps opens up a dynamic rather than static exploration that
captures the process of crafting, institutionalizing, and activating collective
economic agency in legal form. After setting the empirical and methodo-
logical scene, the article opens with an introductory vignette of one
particular instance of hybrid legal form. This illustrates what is at stake,
which is articulated more broadly in a conceptual overview of hybrid legal
forms and relational approaches. The article then returns to two more
instances of hybrid legal forms. Taken together with the opening vignette,
these three initiatives illustrate the ways in which legal form can enable,
loosen or magnify relationality.
The article argues that the poor fit between the formal legal system and
emerging new economic trajectories is actually rather productive. The
precise nature of this productivity can be traced more easily in a jurisdiction
such as Australia, where the paucity of hybrid legal forms necessitates
customized experimentation. That experimentation makes visible the ways
in which relationality, community, and notions of the commons challenge,
reframe and sometimes undermine assumptions about the ways that law
configures an economic enterprise. Relational approaches to the salience of
legal form explore the deployment of legal form in terms of the relationship
65
1 V. Zelizer, `How I Became a Relational Economic Sociologist and What Does that
Mean?' (2012) 40 Politics and Society 145; S.S. Silbey, `The Sociological Citizen:
Pragmatic and Relational Regulation in Law and Organizations' (2011) 5 Regulation
& Governance 1.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

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