Is the state-mandated private provision of public services compatible with concession theory? Insights from positive constitutionalism

Among the political theories of the corporation, concession theory offers the strongest normative foundation for supporting state-mandated corporate social responsibility (CSR). However, this foundation is challenged when such CSR takes forms – like the state-mandated private provision of public services in developing countries – that raise doubts about their compatibility with the public interest. To clarify this tension, the article proposes integrating concession theory with the theory of positive constitutionalism, which emphasises the non-outsourceable nature of core state functions, including the provision of public services. Delegating such functions to corporations undermines the very public interest that concession theory requires. The article argues for a model of state-mandated CSR that enhances state capacity, instead of directly providing public services. This integrated approach offers a clearer normative framework for evaluating the role of corporations in developing contexts and ensures alignment with both the logic of concession theory and the constitutional purpose of the state.