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Greene & Youssef: Human Rights after Corporate Personhood
Human Rights after Corporate Personhood offers a rich overview of current debates, and seeks to transcend the "outrage response" often found in public discourse and corporate legal theory. Through original and innovative analyses, the volume offers an alternative account of corporate juridical personality and its relation to the human, one that departs from accounts offered by public law. In addition, it explores opportunities for the application of legal personality to assist progressive projects, including, but not limited to, environmental justice, animal rights, and Indigenous land claims. Presented accessibly for the benefit of non-specialist readers, the volume offers original arguments and draws on eclectic sources, from law and poetry to fiction and film. At the same time, it is firmly grounded in legal scholarship and, thus, serves as an essential reference for scholars, students, lawmakers, and anyone seeking a better understanding of the interface between corporations and the law in the twenty-first century.
344 pages, Hardcover
Published November 10, 2020
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January 15, 2021
An inherent tension is at play between individual rights and freedoms on the one hand and the scope of corporate personhood, as exemplified in two recent Supreme Court rulings, the Hobby Lobby and Citizens United rulings.
Hopefully these are familiar rulings to the readers. Hobby Lobby had to do with the Hobby Lobby retail corporation seeking an exception from requirements under the Affordable Care Act based on the religious beliefs attributed to the corporation. And Citizens United had to do with the legality of campaign contributions made by corporations as an exercise of free speech. Each decision is nuanced, but each bears on the more general issue that this book addresses — the balance of corporate personhood (and the rights and freedoms accorded to corporations as persons) and the rights and freedoms of individuals.
The editors’ approach is to draw back from the reflex responses to explicit legal and political declarations of corporate personhood to re-examine the notion of corporate personhood per se, drawing especially on its history and, for want of a better word, its metaphysics.
Such an approach is a breath of fresh air, I think. It would be objectionable only to readers who would rather stick to their respective battle lines and toss their stock of existing arguments back and forth.
And starting the discussion by going back to such basics as the rationale behind the corporation and the notion of personhood allows the rest of the discussion, even when it does take on more polemical tones, to reference back to more fundamental questions.
Drawing back to that fundamental question, it would seem an uphill battle to claim that corporations are literally “persons.” Humans are persons. But “persons” itself is a morally and legally laden term, with a theoretical history of its own.
Once we accept that the notion of a “person” for legal purposes, and for purposes of ascribing rights, needn’t necessarily accord to the unreflective meaning of the term, the game is afoot.
Some of the book’s early chapters take an historical look at the rationale behind the very existence of corporations.
In some theories at least, the corporation is the means through which the government promotes the economic good of its people. Without corporations, the kinds of collective enterprises that accomplish trade, infrastructure, etc. would be impossible. The government thus enables the corporation to operate as a recognized legal, economic, and political entity for such purposes.
This enablement includes the ability to enter into agreements under the enforcement of the state — e.g., trade contracts, employment contracts, ownership and titles . . . — as well as agreements and regulatory relationships with the government itself — e.g., incorporation per se, laws governing the conduct of corporations, etc. This rationale lends itself to an interpretation of corporations as legal inventions.
But other historical rationales treat the corporation as in some sense “natural” extensions of or aggregates of individuals. Corporations are the consequence of socially organized work, taking on roles and tasks impossible at the level of individuals themselves.
The principal “theories of corporate personality” are summarized by Stefan Padfield in his chapter (Killing Corporations to Save Humans):
- Concession/Artificial Entity Theory — the corporation is a legally constituted entity, with exactly those attributes articulated in its legal constitution
- Aggregate Theory — the corporation is an aggregation of individuals (shareholders or owners) and derives its rights and freedoms from te rights and freedoms of those individuals
- Real Entity Theory — a corporation is an entity existing independently of the law, and the role of law is to give it recognition as a person in its own right
How we decide to understand the corporation, and to what extent it should be understood as a kind of “person,” is going to be critical to how we balance the rights and freedoms of individuals with those of corporations. If they are full legal persons, we will have to achieve that balance as one among equivalent rights-holders, with the inevitable conflicts between the rights of corporations and the rights of individuals.
The decision in the Hobby Lobby case is a good example of such conflicts. As a “person” with the rights and freedoms of any person, Hobby Lobby has a right to exercise its religious beliefs. Those rights enter into the calculus of other persons’ rights and alter the ability of some individuals (their employees) as would otherwise be determined by the government. Given Hobby Lobby’s religious beliefs, they are not required to provide contraceptive coverage as part of their employees’ employer-provided healthcare coverage, as they would otherwise be required to do under the Affordable Care Act.
As several contributors to the book point out, the resources available to corporations, the very resources that make them capable vehicles for tasks and projects that individuals can’t do alone, advantage them in the resolution of conflicts between corporate rights and individual rights. They have more money, a greater ability to influence political decisions, and they have ready and practiced access to legal resources.
Going back to the basics of corporate personhood should allow us to think our way through such conflicts and how they should be resolved.
It seems that, at least in the US, legal interpretations of corporate personhood have not been consistent. Contrast the conferral of rights upon corporations in Citizens United and Hobby Lobby with Chief Justice Marshall’s ruling in the Dartmouth College vs. Woodward case in 1819. Marshall wrote, “[b]eing the mere creature of law, [the corporation] possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.”
In Citizens United and Hobby Lobby, the Supreme Court seems to have favored a “real entity” interpretation as opposed to Marshall’s “artificial entity” interpretation.
Despite competing theories and legal interpretations, it’s hard to understand a corporation as a “person” plain and simple, or even as an aggregation of natural persons. As Richard Hardack writes in his chapter of the book, “The very nature of the corporation is that there is no their there.” There is no one to whom intentions or speech can be attributed when they are attributed to a corporation.
So, maybe corporations are not “exactly” persons, but are still something similar. Part of the difficulty in classifying corporations as persons or not, or for that matter non-human animals as persons or not, is that the law is not friendly to blurry lines of continuities. It likes to make sharp distinctions, so that a law, or some aspect of a law, either does or does not apply. Neither nature nor human creations, like corporations, are usually so clear-cut.
We might try to place corporations on a kind of spectrum, with “natural persons” (human individuals) at one end and “things” (non-persons) at the other. Such an approach is suggested by some of the discussions here.
Having said that, I suspect that even such an approach would be guilty of a kind of speciesism. In fact, corporations, and intelligent animals for that matter, are not best defined by how similar and how different they are from humans but by what they in fact just are.
The great advantage of likening corporations to persons is its usefulness in legal argument. The US Bill of Rights and the 14th Amendment to the Constitution contain references to “people” and “persons” that provide convenient bases for understanding the conferral of rights and freedoms upon whatever falls under those terms.
The horse may well be out of the barn, given, at least in the US, the history of legal interpretations of corporate personhood. But, taking that step back, why not treat corporations as something entirely different, a category of their own? That category could exist alongside persons, with exactly those rights and freedoms we decide they should have in order to achieve the balance we want between individuals and corporations. Piggybacking on “personhood” seems an awkward and ill-designed strategy for achieving such a balance. Why not start from scratch with the status of corporations?
Stefan Padfield, in his discussion in his chapter on theories of corporate personality, raises such an idea in effect. He suggests that legislators could explicitly add “corporations” to the language of proposed legislation to make clear what rights and responsibilities accrue to both corporations and “natural persons” and which are reserved for one or the other).
Like I said, the horse may be out of the barn, with so many precedents and practices already in place in our legal system and legal rationales.
I have to admit that I hadn’t thought in any depth about corporate personhood before reading this book. I believe my own thinking has been advanced significantly, and so I recommend it pretty highly. It’s not a fast read, though. This is an academic book, although it isn't steeped in technical vocabulary.
I also appreciate the inclusion in the book of viewpoints from art, literature, and philosophy, as well as legal viewpoints. Understanding what a person is, and what the standing of corporations vis a vis persons is, are not wholly legal questions — they are questions that a culture decides for itself historically and through all of its dimensions.
One final note — one of the editors is a friend. That could bias my impression of the book, but I hope that what I’ve said above relays enough of the content and quality of the discussion to counter any bias in my recommendation.
Hopefully these are familiar rulings to the readers. Hobby Lobby had to do with the Hobby Lobby retail corporation seeking an exception from requirements under the Affordable Care Act based on the religious beliefs attributed to the corporation. And Citizens United had to do with the legality of campaign contributions made by corporations as an exercise of free speech. Each decision is nuanced, but each bears on the more general issue that this book addresses — the balance of corporate personhood (and the rights and freedoms accorded to corporations as persons) and the rights and freedoms of individuals.
The editors’ approach is to draw back from the reflex responses to explicit legal and political declarations of corporate personhood to re-examine the notion of corporate personhood per se, drawing especially on its history and, for want of a better word, its metaphysics.
Such an approach is a breath of fresh air, I think. It would be objectionable only to readers who would rather stick to their respective battle lines and toss their stock of existing arguments back and forth.
And starting the discussion by going back to such basics as the rationale behind the corporation and the notion of personhood allows the rest of the discussion, even when it does take on more polemical tones, to reference back to more fundamental questions.
Drawing back to that fundamental question, it would seem an uphill battle to claim that corporations are literally “persons.” Humans are persons. But “persons” itself is a morally and legally laden term, with a theoretical history of its own.
Once we accept that the notion of a “person” for legal purposes, and for purposes of ascribing rights, needn’t necessarily accord to the unreflective meaning of the term, the game is afoot.
Some of the book’s early chapters take an historical look at the rationale behind the very existence of corporations.
In some theories at least, the corporation is the means through which the government promotes the economic good of its people. Without corporations, the kinds of collective enterprises that accomplish trade, infrastructure, etc. would be impossible. The government thus enables the corporation to operate as a recognized legal, economic, and political entity for such purposes.
This enablement includes the ability to enter into agreements under the enforcement of the state — e.g., trade contracts, employment contracts, ownership and titles . . . — as well as agreements and regulatory relationships with the government itself — e.g., incorporation per se, laws governing the conduct of corporations, etc. This rationale lends itself to an interpretation of corporations as legal inventions.
But other historical rationales treat the corporation as in some sense “natural” extensions of or aggregates of individuals. Corporations are the consequence of socially organized work, taking on roles and tasks impossible at the level of individuals themselves.
The principal “theories of corporate personality” are summarized by Stefan Padfield in his chapter (Killing Corporations to Save Humans):
- Concession/Artificial Entity Theory — the corporation is a legally constituted entity, with exactly those attributes articulated in its legal constitution
- Aggregate Theory — the corporation is an aggregation of individuals (shareholders or owners) and derives its rights and freedoms from te rights and freedoms of those individuals
- Real Entity Theory — a corporation is an entity existing independently of the law, and the role of law is to give it recognition as a person in its own right
How we decide to understand the corporation, and to what extent it should be understood as a kind of “person,” is going to be critical to how we balance the rights and freedoms of individuals with those of corporations. If they are full legal persons, we will have to achieve that balance as one among equivalent rights-holders, with the inevitable conflicts between the rights of corporations and the rights of individuals.
The decision in the Hobby Lobby case is a good example of such conflicts. As a “person” with the rights and freedoms of any person, Hobby Lobby has a right to exercise its religious beliefs. Those rights enter into the calculus of other persons’ rights and alter the ability of some individuals (their employees) as would otherwise be determined by the government. Given Hobby Lobby’s religious beliefs, they are not required to provide contraceptive coverage as part of their employees’ employer-provided healthcare coverage, as they would otherwise be required to do under the Affordable Care Act.
As several contributors to the book point out, the resources available to corporations, the very resources that make them capable vehicles for tasks and projects that individuals can’t do alone, advantage them in the resolution of conflicts between corporate rights and individual rights. They have more money, a greater ability to influence political decisions, and they have ready and practiced access to legal resources.
Going back to the basics of corporate personhood should allow us to think our way through such conflicts and how they should be resolved.
It seems that, at least in the US, legal interpretations of corporate personhood have not been consistent. Contrast the conferral of rights upon corporations in Citizens United and Hobby Lobby with Chief Justice Marshall’s ruling in the Dartmouth College vs. Woodward case in 1819. Marshall wrote, “[b]eing the mere creature of law, [the corporation] possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.”
In Citizens United and Hobby Lobby, the Supreme Court seems to have favored a “real entity” interpretation as opposed to Marshall’s “artificial entity” interpretation.
Despite competing theories and legal interpretations, it’s hard to understand a corporation as a “person” plain and simple, or even as an aggregation of natural persons. As Richard Hardack writes in his chapter of the book, “The very nature of the corporation is that there is no their there.” There is no one to whom intentions or speech can be attributed when they are attributed to a corporation.
So, maybe corporations are not “exactly” persons, but are still something similar. Part of the difficulty in classifying corporations as persons or not, or for that matter non-human animals as persons or not, is that the law is not friendly to blurry lines of continuities. It likes to make sharp distinctions, so that a law, or some aspect of a law, either does or does not apply. Neither nature nor human creations, like corporations, are usually so clear-cut.
We might try to place corporations on a kind of spectrum, with “natural persons” (human individuals) at one end and “things” (non-persons) at the other. Such an approach is suggested by some of the discussions here.
Having said that, I suspect that even such an approach would be guilty of a kind of speciesism. In fact, corporations, and intelligent animals for that matter, are not best defined by how similar and how different they are from humans but by what they in fact just are.
The great advantage of likening corporations to persons is its usefulness in legal argument. The US Bill of Rights and the 14th Amendment to the Constitution contain references to “people” and “persons” that provide convenient bases for understanding the conferral of rights and freedoms upon whatever falls under those terms.
The horse may well be out of the barn, given, at least in the US, the history of legal interpretations of corporate personhood. But, taking that step back, why not treat corporations as something entirely different, a category of their own? That category could exist alongside persons, with exactly those rights and freedoms we decide they should have in order to achieve the balance we want between individuals and corporations. Piggybacking on “personhood” seems an awkward and ill-designed strategy for achieving such a balance. Why not start from scratch with the status of corporations?
Stefan Padfield, in his discussion in his chapter on theories of corporate personality, raises such an idea in effect. He suggests that legislators could explicitly add “corporations” to the language of proposed legislation to make clear what rights and responsibilities accrue to both corporations and “natural persons” and which are reserved for one or the other).
Like I said, the horse may be out of the barn, with so many precedents and practices already in place in our legal system and legal rationales.
I have to admit that I hadn’t thought in any depth about corporate personhood before reading this book. I believe my own thinking has been advanced significantly, and so I recommend it pretty highly. It’s not a fast read, though. This is an academic book, although it isn't steeped in technical vocabulary.
I also appreciate the inclusion in the book of viewpoints from art, literature, and philosophy, as well as legal viewpoints. Understanding what a person is, and what the standing of corporations vis a vis persons is, are not wholly legal questions — they are questions that a culture decides for itself historically and through all of its dimensions.
One final note — one of the editors is a friend. That could bias my impression of the book, but I hope that what I’ve said above relays enough of the content and quality of the discussion to counter any bias in my recommendation.
Displaying 1 of 1 review