Some Thoughts on “Corporate Personhood”
March 18, 2014 § Leave a comment
So today while lazing around in bed I happened upon a Slate article on the latest legal claim to “corporate personhood”. By the way the link I embedded here is to the Wikepedia entry on corporate personhood. It’s a fairly good one, going through all of the American legal precedents that touch (and only sometimes set precedent) on the subject. As an aside one of those Wikipedia banners appear on this page (the ones that implore the worldwide public to ensure that the article conform to Wikipedia standards). The banner warns that this particular entry “…does not represent a worldwide view of the subject.” This is apparently an attempt to combat ‘systemic bias.’ I have thoughts on this, which I will have to return to later.
But first back to the Slate article, written by University of Chicago Law Professor (and semi-frequent Slate contributer) Eric Posner. Posner teaches us a history lesson, one that reveals the pragmatic nature of the law, one that must in fact create a fictional person in the form of a corporation (a sworn association of persons) in order to hold corporations responsible for certain, especially criminal actions. This form of “personhood” does not automatically grant all the rights of citizenship to corporations. To clarify, we are talking of corporate “personhood” as opposed to corporate citizenship.
Sometimes etymologies help, sometimes they don’t. In this case they might. So to help myself out I’m going to lay out some key terms and their defintions and etymologies
Person: The word “person” originally comes from the Latin persona “mask, or false face” as in the clay masks worn by those in the Roman theater. The word persona of course exists in the English language and its meaning has not really changed from the original Latin.
Citizen: A citizen has since the early 14th c. meant the inhabitant of the city. At this time city limits (which were still mostly defined by city walls) was also a circumscription of law. National borders act in much the same way today and thus the term citizen today is also the legal subject of the nation-state.
Human: is a being as distinguished from an animal. During the Enlightenment era the category of human as a universal category emerged. As a universal category human rights transcend the bounds of law and citizenship. However there has never been a truly effective guarantor of these rights. The UN and International Criminal Court are ostensibly responsible for establishing and protecting these rights. Standing in their way is national sovereignty, or the rights of nations to enjoy full jurisdiction within its borders. Now as my sister in law, a human rights lawyer explained to me human rights law not only exists as an international structure, but also establishes itself in treaties between participating nations. There is much more depth to go into here…
Corporation: mid-15c., “persons united in a body for some purpose,” from such use in Anglo-Latin, from Late Latin corporationem (nominativecorporatio), noun of action from past participle stem of Latin corporare “to embody” (see corporate). Corporations, that is bodies of sworn citizens preceded the formation of the nation state. For example in the vacuum of power that was the result of the collapse of the Roman Empire several guild-based corporations emerged. These corporations were not the legal subjects of the state, they were self-incorporated. The corporation’s roots in guild practices (as opposed to today’s nation state form which is a spatial inheritance of feudal territory) makes it a spatially different kind of organization… though its form, like the nation-state form passed through the city at some point in time. Today corporations must be legally authorized by some other state. Today they are the legal subject of the nation-state in which that corporation is formed. Below is a map of the semi-autonomous states of the Swabian Circle. As you can see, it’s a mess of territories, some of them principalities, and some of them, though very few of them were “free imperial cities” or self ruling territories. At this point Napoleon was uniting France, the UK was pretty much whole, as was Spain and Portugal… Corporate rule is closest to that of “free imperial cities” that is until the entire world map is drawn as a single community of nation-states. The corporation and the nation-state cannot co-exist as separate but equal power structures. One must eventually fall under the legal jurisdiction of the other. Generally, in the United States the capitalist system is one that dictates that the private sector (individual proprietors and corporations) owns and administers material wealth, with government oversight, while the State possesses and exercises ultimate political power. Today, however it should be clear to almost everyone that corporate power has seized not only a great deal of material wealth but also has bought a fair amount of political power, especially in these United States.
OK… back to thinking about all of these terms together… At least etymologically a person was never equivalent to a human, nor was there ever a legal equivalence between personhood and citizenship. A corporation is a person (or a persona), which is a question of legal representation, not an existential question, as Jon Stewart might have you believe. My point here is that corporate personhood is, as far as I can tell according to both Wikipedia and to Posner’s article always a legal placeholder, a means of holding a party responsible, a legal “mask” if you will.
Now I imagine that this is so, for many different reasons, most of them involving international commerce. You and those you may incorporate with do not have to be citizens of the United States. This allows, for example a business with foreign owners to sell their products in the United States, while still being legally held accountable for its own actions at least while the operate under the “mask” of the corporation. Things get messy when we start thinking about multinational corporations (MNCs) and transnational corporations, where because that corporation’s legal authorization or recognition ‘resides’ in more than one country, the question of legal jurisdiction becomes a problem. More often than not corporations become trans- or multi- national in order to operate in countries that have low human rights and environmental standards.
But if we take the LONG history of the corporation into account and its subsumption into the world-wide map of nation states… we see that these entities would always be two forms of competing power (as both command a population and a wealth of resources). The modern corporation, however de-spatializes (literally transforming into global networks) while the nation-state becomes our means of understanding political geography.
Now, I’m a mere political philosophy dabbler, inasmuch as I tried to hang with a bunch of smarty farty abstract thinkers in a class I took with Etienne Balibar. That means the kinda stuff I read is not of the John Rawls sort (i.e. practical and dealing with present day institutions with a de facto liberal bent), but of the Hannah Arendt sort (i.e. more abstract). Also, I am certainly no lawyer. I’m mostly writing these notes for myself because I’m trying to understand the corporation, and the multinational corporation as a sort of topological praxis (which could be thought of in terms of a mathematics of connection as opposed to a geometric delineation of space as was the case with the Greek politeia which is coextensive with the wall of the city-state). Wendy Brown tries to trace the non-sense of the border in Walled States through the treatment of hyper-militarized borders as the symptom of the waning power of the nation state. What I want to do is to think about some of the (non-spatial) forces (i.e. networks) that destroyed the wall (not its physical presence but its effectiveness) more directly. I want to think of the material of connection (telegraph lines, radio waves, internet connectivity etc.) as a means of replacing the primacy of space. What were the actual effects of these technologies in terms of debasing the geographical basis of sovereignty?
To think about… Corporate conscience, corporate psychology, Flag of convenience, Citizens United, electioneering.
Interestingly the plural of person, people is not etymologically related to “person.”