Why can't we co-operate? the impact of law and regulation on the development and growth of co-operative enterprise

The rise in globalised corporate capitalism since the 1980s has been accompanied by a corresponding growth in regulation and regulatory institutions - a phenomenon described as ‘regulatory capitalism’. Corporate law researchers have given plenty of attention to the interactions between the investor-owned company and its regulatory environment, but few have considered the plight of an alternative type of corporation, the co-operative. Why are large co-operatives struggling in the era of regulatory capitalism? In some countries, large co-operatives are experiencing isomorphism, adapting their features and behaviour to mimic the investor-owned company. Many of the largest and oldest co-operatives in Australia have disappeared, mainly due to foreign acquisition and demutualisation. This thesis explores the relationship between law and regulation, and the shrinking of the co-operative sector in Australia. The focus is on the financial and agricultural sectors where co-operatives have traditionally had a strong presence; and co-operative housing, where they have an unrealised potential to support affordable housing. Drawing on David Levi Faur’s notion that capitalism is a regulatory institution, and that regulation not only constrains capitalism, but it also constitutes, enables, and expands it, this thesis has two objectives. First, using doctrinal and historiographical methods, it situates the co-operative in Australia as a type of corporation with a distinct legal identity and an important historical role in ensuring well-functioning markets. Second, focusing on three industry sectors, it examines the role of law and regulation in the commodification of Australian co-operatives and their intergenerational assets. This thesis challenges explanations of co-operative isomorphism and decline based solely on neoclassical or ‘law and economic’ theories. The neoclassical approach analyses co-operative failure at the enterprise level and critiques its shortcomings by comparing it to the investor-owned company as the default model. This thesis takes a broader conception of law and regulation and examines its constitutive role in enabling the hegemony of the investor-owned, ‘for-profit’ company, and marginalising the co-operative as an alternative. It also contributes to a small body of literature on co-operative law and adds a history of the evolution of co-operative law in Australia.