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Durham University

Durham Law School

Staff profile

Publication details for Dr Daniel Attenborough

Attenborough, D. (2014). The neoliberal (il)legitimacy of the duty of loyalty. Northern Ireland Legal Quarterly 65(4): 405-428.

Author(s) from Durham

Abstract

The reformulated duty of loyalty now found in s 172 of the Companies Act 2006 has been seen as
imprecise or an ambiguous development for directors’ duties. It has generated debate about what is the best
reading of the duty, the most fundamental aspect of which is whether this behavioural standard obliges a
narrow focus on financial capital or a broader notion of well-being and inclusiveness amongst nonshareholder
interests. This article argues that the law as a privileged and constitutive way of society-making
can only be understood within a broader conceptual framework rather than the more traditional expository
analysis of law. The context in which such an analysis takes place is that of the anti-collectivist, marketbased
political project of neoliberalsm. When viewed through this explanatory lens, we see very clearly that
English legal doctrine codifies an embedded relationship between managers and shareholders. In doing so, the
article shows that the extraction of private benefits of control by shareholders is not an inevitable occurrence,
but a decades-long, human-created and contingent phenomenon. While non-shareholder interests are
introduced into the duty, this precatory element is merely a potential source of legitimacy to the ideology of
the company as a private, exclusively shareholder-oriented enterprise.