Corporate Beings
Corporate Beings
The Constitution of the United States
Amendment XIV
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the States wherein
they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws.
In 1886, Chief Justice Waite in ruling on the case Santa Clara County v. Southern Pacific RR., announced from his bench:
The court does not wish to hear argument on the
question whether the provision in the Fourteenth Amendment
to the Constitution, which forbids a State to deny to any
person within its jurisdiction the equal protection of the laws,
applies to these corporations. We are all of the opinion
that it does. (Douglas pg. 154)
Chief Justice Waite ushered the above statement without giving any written or oral legal argument as to his justification for viewing a corporation as a person. There has been little legal debate as to the ramifications of his ruling and even less public debate as to the plausibility of such a view. The goal of this paper is to explore whether or not corporations can or cannot be viewed as persons. To do this I will first introduce some definitions of what personhood means, then I will apply these definitions to corporations in order to see if they meet the established criteria for personhood, and lastly, I will offer some examples of how corporate beings differ from human beings.
We must start by admitting that no definition of personhood is immutable or completely accurate. However, there are definitions which are more significant than others. The following definitions therefore, are those chosen by me to represent what I feel are reasonable definitions for personhood.
While common vernacular is seldom used in legal or philosophical discourse, I feel nonetheless, that a dictionary definition is applicable in this case, for the Constitution of the United States, though a legal document, is also a public document and therefore open to public scrutiny concerning the meaning of its words and the ideas which those words embody. The Constitution of the United States is not off limits to the populace, open only to lawyers and judges, but is instead, only meaningful when granted its legitimation by the people whose laws it establishes. What definition then, would the “average citizen†most likely use in determining the meaning for personhood, as covered in the 14th Amendment?
Most people, being neither philosophers nor legal experts would most likely use a standard dictionary definition, such as the following: “person. n. 1, a human being. 2, the human body.â€, from The New American Webster Handy College Dictionary. While it is true that both of the above definitions would fall short of being adequate in defining what a person is in a philosophical sense, however, leaving our need for philosophical clarity behind, it is safe to say that these two above definitions are sufficient for stipulating what is meant in our common vernacular as to what a person is. As can be readily seen in the above definitions, a person is strictly linked to being human. The common definition for person does not mention artificial beings and therefore cannot be said to incorporate or imply any justification for viewing a person as including a corporation.
Let us now, briefly, turn our attention towards some basic philosophical definitions for “personâ€. A functionalist definition would include the necessity for the subject in question to posses a range of specific psychological abilities. An example of a functionalist argument for personhood is given by Locke: “a thinking intelligent Being, that has reason and reflection, and can consider itself as it self, the same thinking thing in different times and places.â€(Honderich pg. 655) Without going into detail as to what “psychological abilities†consist of, I think it is safe to say that such a definition cannot be applied to an artificial person such as a corporation, for a corporation is devoid of a mind or a brain and therefore also devoid of having any psychological abilities, such as: being capable of thought or reason, nor do corporations posses the function of self-reflection. One might argue that corporations do make decisions as artificial entities within a societal context, and that these decisions resemble psychological abilities, for corporations do appear to make decisions which take into account, not only their own existence, but also how that existence relates to the rest of the world, however, corporations do so not as entities which think for themselves, but as contrivances which are controlled by human beings in key management positions. A corporation, being an abstract legal entity does not posses in itself, anything which we could legitimately say, constitutes a mind or a brain capable of its own thought, reason, or self-reflection. In other words, corporations do not think, instead, it is those who are in managerial positions such as C.E.O.’s. which make the decisions for the artificial legal entity known as a corporation. It seems then, that any reference to psychological abilities rests not on the mind-functional capacities of corporations, but on actual human beings within this abstract legal entity. An obvious example of how this is true can be readily seen, for if we were to send all human beings home, severing their ties with the corporation for which they normally work, it would be ridiculous to say that the corporation would continue to exist as a person, readily carrying on tasks and making decisions without the need for human guidance.
One might object and say that a corporation could be totally automated, given artificial and intelligent instructions through advanced computer programming, which it could use in order to modify and update its own actions as it reacts to external stimuli, thereby adapting itself to new situations. It would be able to make decisions like humans, learn, and apply what it has learned to new situations. Someday, such an artificial corporate being with advanced artificial intelligence capabilities might even be said to be capable of true thought, creativity, emotion, reason, and self-realization. In the future this could be a reality. Would such an entity be considered an artificial corporate being? The answer for this lies in arguments for and against the inclusion of artificial intelligence as being sufficient for meeting the criteria of thinking and personhood. Such an entity would probably be considered a being in the same sense that any inorganic being is, i.e., robots, advanced computer programs, etc. Such an entity just may be a true artificial corporate person, but only if one accepts that inorganic beings should be accepted into the realm of personhood in the same respects as humans are, this being so, shows how far our current legal understanding of artificial corporate persons is from being accurate. The above example also raises some serious ethical questions and hints at why it may be dangerous to confuse the boundaries between artificial inorganic corporate persons with those of human persons, for if we were to grant the same rights to artificially intelligent inorganic corporate beings as we do to human beings, then any activity which led to the closing of such a facility, even if it were necessary for economic or environmental reasons, would have to be viewed as the termination of such an entity’s life. New definitions of capital punishment would have to be devised. A host of other problems also becomes apparent, such as: What sort of taxes should such a being have to pay? What societal duties would such a being be responsible for carrying out? What would the pursuit of happiness mean to a corporate being? Could corporate beings be owned as property or would such ownership be considered a new form of slavery? The questions concerning the legal, philosophical, and social ramifications of artificial corporate personhood are serious questions which someday need to be addressed if society is to keep the ongoing dialogue concerning freedom and liberty alive and flourishing in this country.
Getting back to our philosophical definitions, I now turn to Descartes. Descartes postulated that persons were a fusing together of both body and soul. For obvious reasons I will not discuss whether or not corporations posses bodies, it should be self-evident that they do not. Corporations do consist of many material items, i.e., desks, chairs, machinery, buildings, etc., but these cannot be said to be a part of the body of a corporation, unless of course one is using body in a symbolic and an inorganic sense, which is antithetical to Descartes use of the word in reference to personhood. What about souls then? If there are such things as souls, it seems impossible that a corporation could posses such a thing. Souls seem to be possessed by beings which are capable of making moral decisions or as some have argued, given by god to certain creatures, most notably, humans. Regardless of which creatures posses souls, I doubt that most people would be comfortable in saying that a corporation has a soul in the religious sense, for it seems preposterous to say that god would grant an abstract legal and inorganic being such as a corporation, a soul. The common Western religious belief is that god grants a being its soul at the moment of its conception, a corporation however, cannot be conceived in the same manner in which most creatures come into existence. Another example of why it is difficult to view a corporation as having a soul, can be seen in the following: corporations, since they are not given life, are also incapable of dying. They may be bought out, sold, dissolved, or go bankrupt, but this is all together different from dying, which is a common and shared trait of all organic beings. Lastly, a corporation cannot posses a soul, because beings which do, are morally responsible for their actions, and are said by most Western religions to be judged by god and therefore are either punished in hell or are rewarded in heaven. It is absurd to say that god would judge a corporation in a similar manner as he does with human beings, sending them to heaven or hell. Usually, when a person says that a corporation has a soul, what is meant, is that the corporation in question has a heart or is socially responsible, and not that it possesses the same type of soul which is used in Western religious texts.
Some might say that philosophical and common language definitions are superfluous to our arguments for and against a corporation being viewed as a person, for the definition of “person†is a legal one. First, this is a misguided assumption, for the creation of laws is usually a reflection of a society’s deep-seated religious and philosophical beliefs. Laws are not created in a legal vacuum free from the beliefs of a society, but are instead, reactions to societal concerns framed within the context of the Constitution. Two, since little legal argument has ever been given as to how a corporation can be viewed as a person, yet legitimized by law as such, means that to analyze this concept we have no recourse but to look beyond law in hopes of finding justification by using alternative methodologies granted by other disciplines. When law does not justify its own rulings, it becomes the responsibility of those who are governed by those laws, to de-construct those same laws which have never been tested. The legal statement which set the future precedent for how we ought to view corporations was never qualified by any legal justification, but was instead, given only as an opinion by Chief Justice Waite. Staying within the context of law, and casting aside the historical process by which laws become entrenched within our culture, there must be some way for us to get a clear understanding of what is meant by a person. Our greatest and most valued legal document is The Constitution of The United States. It seems then, that no talk of personhood could be complete, without examining what the Constitution defines as a person. Personhood in the legal sense, is defined in clear and concise language in the opening paragraph of the 14th Amendment, it states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.†In order for someone to be considered a legal person within the eyes of the law, and thereby protected by our Constitution, they must be born or naturalized as a citizen of the United States. As I made clear in my above arguments, a corporation cannot be born nor would it be capable of being naturalized as a citizen. A clear example as to why this is impossible in a legal sense, can be readily seen, for people are proven in the eyes of their government to legally exist by means of a birth certificate. Corporations on the other hand are not and cannot be granted a birth certificate. It is equally absurd to say that a corporation could be naturalized, for it is impossible for a corporation to take the oath required for citizenship. It is discomforting that we grant an abstract entity such as a corporation more legal rights in this country than we do our legal immigrants, for though legal immigrants seem to posses the same rights as citizens, in fact, they do not, for they cannot vote and can always be subjected to deportation. Corporations on the other hand, use lobbyists to obtain favorable laws, get direct access to politicians by giving large campaign contributions thereby circumventing the democratic process, and are never in fear of deportation.
To further show how corporate beings differ from human beings, I have comprised a list of differences:
1) Corporations cannot be conceived through copulation, they are not born, and cannot die. They are, as long as assets are passed on, immortal.
2) A human being can only be in one place at one time. Corporations however, are capable of spreading their dominance and physical infrastructures across the globe, interfering on a mass scale with other cultures.
3) People are legally and morally responsible for their actions. Corporations though they can be fined, cannot, like ordinary citizens, be incarcerated or put to death by a system of capital punishment. The only deterrent to stem their abusive tactics is monetary loss, but since any monetary loss is usually passed on to the consumer, this is really no deterrent at all. We do not punish society for the wrongdoings which criminals incur upon people, so why should we allow corporations to pass on the costs which their abuses create, to the society which they are supposed to be serving? True, top managers can be held responsible for the crimes of a corporation, but usually, if convicted, they will be incarcerated for very little time (if at all) and no penalty except monetary fines, which once again is passed on to the consumer, can be given to the corporation. It is highly unlikely for any C.E.O. to be incarcerated in the first place. Even when his or her company is found to be grossly negligent, causing by means of a faulty product, the death of an unsuspecting consumer, he or she is usually quietly dismissed from their management position with a substantial pension. Our laws protect corporations by shielding those in power from having to accept responsibility for criminal actions, by turning all legal rulings into a monetary calculation. Our society also does not subject corporations to the same level of scrutiny that corporations subject the working class people to. There is little to no internal watching of management, instead, they are left to do as they please without interference or critical examination by those under them or by society at large. Yet, employees are routinely monitored by their employers using a host of tactics: monitoring e-mails, emplacement of security cameras, encouraging for the sake of efficiency and competition an environment of paranoia and distrust, regular evaluations, and the constant gaze of the managers themselves. Our government has a system of checks and balances in place to ensure the security of our freedoms, and is also, at least in theory, subject to open public review. Why do we demand so much less from corporations than we do our government? Lastly, as I have said in my above arguments, corporations are in no fear of being judged by god, for they do not have a soul which will either be rewarded in heaven or punished in hell. Morally, legally, and religiously, corporations have little to worry about, instead, their sole worries stem from monetary considerations. Moral actions are calculable by a monetary calculus and based solely on the bottom line. Corporations strangely enough, enjoy more rights than the common citizen and are less likely to be held responsible for their criminal actions.
4) Since a corporation does not have a mind, it therefore, cannot reflect upon its moral actions. And since the amassing of wealth is the main goal of corporations, they are therefore less inclined to care about any altruistic considerations which stem from social cooperation amongst individuals that do not in some manner lead to a profit being made. Also, a corporation since it cannot reflect upon its own actions, cannot grow and learn from those actions, thereby applying them to the building of a strong moral foundation. The growth of a corporation is usually viewed in light of its assets, not in light of its personal moral growth.
5) Corporations in a biological sense, have no genetic material, and therefore are not concerned with their continuation as a species, the continuation of other species, nor need they have any concern for the environment they live within. Corporations are free to pollute, for they do not have to fear the effects that their pollution may cause their own species, for corporations have no genetic material which is passed on to successive generations as they evolve in reference to environmental factors. The only survival which corporations are concerned with is the continuation of their business practices and the amassing of capital wealth. Social, moral, and environmental wealth, in the eyes of business, are viewed as antithetical constraints which unjustly hamper their progress of domination over humankind and nature by the “rational†business machine. Morality in the context of a larger societal good, having no calculable monetary value is ignored and oftentimes considered to be bad for business.
6) Corporations having no bodily form, can grow to proportions which are beyond restraint, for they have no genetic blueprints which limits their growth. There are no biological traits by which to classify a corporation as belonging to a certain species. This means that a corporation can grow with the expansion of its infrastructure, to proportions unaffected by any internal biological constraints. Being an inorganic legal entity means that evolution does not apply to corporations, except as an analogy, which means that corporations will only change in reference to their environment through the decisions made by those who fill the ranks of top management positions. All creatures grow within certain proportional limits to its species characteristics, i.e. humans have an average height and weight, just as most species do. Growth which cannot be contained is oftentimes viewed to be abnormal, which is the case with certain hormonal growth diseases. Rampant and uncontrollable growth, within a being, is also said to be cancerous. However, as stated above, since a corporation has no biological traits, they cannot be said to be cancerous in the same sense that cancer grows within bodies, but can be said, metaphorically, to be cancerous within a societal context, that is, whenever a corporation’s growth is unchecked by necessary constraints and no longer serves the needs of the bodied whole, i.e., society.
7) Corporations having more economic resources than the average citizen, can oftentimes influence law and even have the privilege of obtaining the best legal advice available for their court cases. The line between those in business and those in politics is almost nonexistent, for many politicians become lobbyists for corporations and many former heads of corporations are politicians. Wealth also grants corporations more legal choices in the quantity and quality of lawyers which they then utilize in crafting more persuasive defenses. The average citizen however, having little money, is oftentimes left with limited legal choices, and in the case of being poor, have to make do with court appointed lawyers. How many corporations would feel that justice was served if they were appointed by a judge, a single court appointed lawyer to represent their case?
8) Humans and most creatures, lack the ability to combine or split without impudence. Corporations however, can shed assets and employees in order to maintain their financial buoyancy, or can merge with other corporations to become larger and more powerful. Humans are incapable of joining with other humans in order to benefit from another individual’s abilities, such as their physical strength or intelligence. This gives corporations powers of transformation which are unheard of in the natural world, and gives them the ability to morph. into new larger corporations or into smaller corporations which shed unfavorable subsidiaries in the name of profiteering or to enhance their public image. Such amazing transformations allow a corporation to dodge having to take responsibility for failed actions which may lead to larger social ramifications.
9) Corporations are permitted without challenge, to reshape public discourse through media manipulation by introducing into our common vernacular words which are never qualified. In many cases media companies which are supposed to objectively cover what takes place in our society, being owned by the same large corporations which wish to hide their activities, are unfairly biased when it comes to reporting to the public, their own activities. The average citizen, having almost no access to the same media resources as corporations do, have little ability to shape public discourse. Words and language are slowly being transformed into a business friendly vernacular, a few such examples are: Laying people off to boost stock prices becomes “downsizing†or “strategic reorganization†which maintains corporate efficiency. People who are concerned about the criminal polluting of our environment become “environmental extremists†who are bent on the destruction of the economy. And disagreements between labor and management over pay, pensions, or benefits, becomes a “labor dispute†as opposed to a dispute over just compensation for employees labor. Also, what is rational becomes understood only in terms of economic well-being. Science too, having become infected by business needs, has become that which maintains a robust economy by means of generating new technologies that spinoff an endless procession of new gadgets. Efficiency, as it has become defined by corporations, is the new methodology which shapes our institutions, instead of social responsibility being our guide. Instead of moral considerations, the amassing of wealth is the motivating factor which guides the actions of corporations. And lastly, education and knowledge have become subservient to the needs of the economy. These are just a few areas in which we no longer see our own subservience to the needs of corporations, for our existence has become an economic existence, unable to separate the manipulated reality imposed on us by way of total monetary intrusion into every aspect of our lives, from that of a free existence which creates for itself, meaning beyond that of financial fears and economic considerations.
10) Corporations foster competition amongst employees, while joining together behind closed doors to establish deals which create larger monopolies, thereby negating competition at the level it is needed most. This ensures that capital wealth stays at the upper levels, inflates prices, and ensures large returns for the few giant corporations which are at the top. The average citizen is at the mercy of their employer, who ensures that employees are kept aware that there is always a long line of people waiting for their job. The replacing of employees becomes an easy affair, for there will always be new people to replace those that management dislikes. Employees are fired and are oftentimes subjected to verbal and written denouncement, while managers and C.E.O.’s are given severance packages, “golden parachutes†which soften their fall, and are usually granted new positions at other corporations. Competition at the lowest levels ensures that employees will work hard and maintains a culture of paranoia which is then utilized against employees, one against the other, in order to maintain order in the work place. Although employees are always under scrutiny and are subjected to decisions which they have little say in helping to finalize, managers on the other hand, have closed meetings which are held far from the peering eyes of the populace or their employees, and out of the reach of a democratic decision making process.
So far we have loosely examined various definitions and characteristics which may or may not be sufficient in describing what personhood means. I have also shown some of the ways in which corporations differ from other beings, especially that of the average citizen. As has been shown above, a corporation does not posses a mind, a body, or a soul, and although this in no way completely rules out that a corporation cannot be viewed as a person, it does however, point out the difficulties in justifying it as such, for if we find it difficult to define for ourselves what it means to be a person in the human sense, then it must be equally if not more difficult to define personhood for something as abstract as a corporation. Should we even be worried about an accurate definition for what we mean by a corporate being? Are there any moral reasons for doing so or are there only practical considerations to be made?
A person is not whatever a judge haphazardly decides is legally most prudent. Instead, deliberation on such a concept involves a dynamic process which examines multiple arguments given by different disciplines, which take into account the moral responsibilities inherent with any definition concerning personhood. It is up to the people after hearing the best arguments, whom corporations serve, i.e. the average citizen, which must ultimately decide whether or not the law ought to include corporations as legitimate persons. Unfortunately though, the law, which has been poisoned by corporate interests and routinely gives little justification for its biased rulings in favor of big business, can no longer be viewed as rationally embodying the values of the populace, unless of course, we admit that the populace as a whole has also been transformed by corporate manipulation into a body of people whose values only reflect corporate interests. If this is true, then it may already be too late for society or for any individual to create for themselves, a system of ethics which is capable of transcending the values imposed by our intrusive economic model. Such a view means that freedom is no longer understood, except in monetary terms, i.e. freedom becomes a concept which is only understood as that which maximizes wealth. Freedom becomes the freedom to exploit in the name of economic gain.
Without going into lengthy explications as to how to fix our current system, I will instead offer a few examples of what could conceivable be done. Democracy could be extended to cover corporations, making every action and decision made, transparent to the populace. Corporations after all, just like politicians, play a large role in shaping our society, for their actions more so than the average citizen, effects the public as a whole. The average citizen could be given more say as to the decision making process of businesses and could also be given more power in formulating laws which govern corporate behavior. Laws could be established which held corporations or those in charge of corporations criminally responsible, instead of just being financially responsible for their actions. The charter system for granting corporations their legal existence could be re-invented and made legally viable in order to ensure that corporations meet the requirements as set forth in the charter, and if they fail to do so, could be dissolved or turned over to its employees or the government which granted the corporation its charter. Employees could be encouraged to have a greater stake in corporations, owning the assets and controlling the productive means of the corporations they work for. Managers could be elected by employees and held to the same standards of review as they subject their employees to. A system of checks and balances could be established to ensure that no corporation gains an unfair advantage or power over other corporations or over that of the populace as a whole. People could be encouraged to speak out without fear of dismissal about the wrongdoings of the corporations they work for. The list could be extended in many pragmatic, rational, and creative ways. In questioning and offering possible solutions to complex problems, we do not destroy our society or democracy, but instead, we make it better, for our society is founded on principles which challenge oppression wherever and in whatever form it manifests itself in. The above suggestions are also, in no way exhaustive or solely qualified in their portrayal of legitimate solutions, they are instead, only meant to spur debate and show that given time and ample resources, the possibility of producing viable solutions which benefit society, are capable of being found. A simple question must be asked and answered by each of us: Whose rights does a want of liberty maintain, what persons shall be free, we the people or those of corporate beings? If we as citizens cannot control the actions of corporations, then the actions of corporations will control us.
Works Cited
Douglas, William, O. The Court Years. New York: Random House Inc., 1980.
Honderich, Ted. The Oxford Companion to Philosophy. Oxford: Oxford University Press, 1995.
Copyright 2001
The Constitution of the United States
Amendment XIV
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the States wherein
they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws.
In 1886, Chief Justice Waite in ruling on the case Santa Clara County v. Southern Pacific RR., announced from his bench:
The court does not wish to hear argument on the
question whether the provision in the Fourteenth Amendment
to the Constitution, which forbids a State to deny to any
person within its jurisdiction the equal protection of the laws,
applies to these corporations. We are all of the opinion
that it does. (Douglas pg. 154)
Chief Justice Waite ushered the above statement without giving any written or oral legal argument as to his justification for viewing a corporation as a person. There has been little legal debate as to the ramifications of his ruling and even less public debate as to the plausibility of such a view. The goal of this paper is to explore whether or not corporations can or cannot be viewed as persons. To do this I will first introduce some definitions of what personhood means, then I will apply these definitions to corporations in order to see if they meet the established criteria for personhood, and lastly, I will offer some examples of how corporate beings differ from human beings.
We must start by admitting that no definition of personhood is immutable or completely accurate. However, there are definitions which are more significant than others. The following definitions therefore, are those chosen by me to represent what I feel are reasonable definitions for personhood.
While common vernacular is seldom used in legal or philosophical discourse, I feel nonetheless, that a dictionary definition is applicable in this case, for the Constitution of the United States, though a legal document, is also a public document and therefore open to public scrutiny concerning the meaning of its words and the ideas which those words embody. The Constitution of the United States is not off limits to the populace, open only to lawyers and judges, but is instead, only meaningful when granted its legitimation by the people whose laws it establishes. What definition then, would the “average citizen†most likely use in determining the meaning for personhood, as covered in the 14th Amendment?
Most people, being neither philosophers nor legal experts would most likely use a standard dictionary definition, such as the following: “person. n. 1, a human being. 2, the human body.â€, from The New American Webster Handy College Dictionary. While it is true that both of the above definitions would fall short of being adequate in defining what a person is in a philosophical sense, however, leaving our need for philosophical clarity behind, it is safe to say that these two above definitions are sufficient for stipulating what is meant in our common vernacular as to what a person is. As can be readily seen in the above definitions, a person is strictly linked to being human. The common definition for person does not mention artificial beings and therefore cannot be said to incorporate or imply any justification for viewing a person as including a corporation.
Let us now, briefly, turn our attention towards some basic philosophical definitions for “personâ€. A functionalist definition would include the necessity for the subject in question to posses a range of specific psychological abilities. An example of a functionalist argument for personhood is given by Locke: “a thinking intelligent Being, that has reason and reflection, and can consider itself as it self, the same thinking thing in different times and places.â€(Honderich pg. 655) Without going into detail as to what “psychological abilities†consist of, I think it is safe to say that such a definition cannot be applied to an artificial person such as a corporation, for a corporation is devoid of a mind or a brain and therefore also devoid of having any psychological abilities, such as: being capable of thought or reason, nor do corporations posses the function of self-reflection. One might argue that corporations do make decisions as artificial entities within a societal context, and that these decisions resemble psychological abilities, for corporations do appear to make decisions which take into account, not only their own existence, but also how that existence relates to the rest of the world, however, corporations do so not as entities which think for themselves, but as contrivances which are controlled by human beings in key management positions. A corporation, being an abstract legal entity does not posses in itself, anything which we could legitimately say, constitutes a mind or a brain capable of its own thought, reason, or self-reflection. In other words, corporations do not think, instead, it is those who are in managerial positions such as C.E.O.’s. which make the decisions for the artificial legal entity known as a corporation. It seems then, that any reference to psychological abilities rests not on the mind-functional capacities of corporations, but on actual human beings within this abstract legal entity. An obvious example of how this is true can be readily seen, for if we were to send all human beings home, severing their ties with the corporation for which they normally work, it would be ridiculous to say that the corporation would continue to exist as a person, readily carrying on tasks and making decisions without the need for human guidance.
One might object and say that a corporation could be totally automated, given artificial and intelligent instructions through advanced computer programming, which it could use in order to modify and update its own actions as it reacts to external stimuli, thereby adapting itself to new situations. It would be able to make decisions like humans, learn, and apply what it has learned to new situations. Someday, such an artificial corporate being with advanced artificial intelligence capabilities might even be said to be capable of true thought, creativity, emotion, reason, and self-realization. In the future this could be a reality. Would such an entity be considered an artificial corporate being? The answer for this lies in arguments for and against the inclusion of artificial intelligence as being sufficient for meeting the criteria of thinking and personhood. Such an entity would probably be considered a being in the same sense that any inorganic being is, i.e., robots, advanced computer programs, etc. Such an entity just may be a true artificial corporate person, but only if one accepts that inorganic beings should be accepted into the realm of personhood in the same respects as humans are, this being so, shows how far our current legal understanding of artificial corporate persons is from being accurate. The above example also raises some serious ethical questions and hints at why it may be dangerous to confuse the boundaries between artificial inorganic corporate persons with those of human persons, for if we were to grant the same rights to artificially intelligent inorganic corporate beings as we do to human beings, then any activity which led to the closing of such a facility, even if it were necessary for economic or environmental reasons, would have to be viewed as the termination of such an entity’s life. New definitions of capital punishment would have to be devised. A host of other problems also becomes apparent, such as: What sort of taxes should such a being have to pay? What societal duties would such a being be responsible for carrying out? What would the pursuit of happiness mean to a corporate being? Could corporate beings be owned as property or would such ownership be considered a new form of slavery? The questions concerning the legal, philosophical, and social ramifications of artificial corporate personhood are serious questions which someday need to be addressed if society is to keep the ongoing dialogue concerning freedom and liberty alive and flourishing in this country.
Getting back to our philosophical definitions, I now turn to Descartes. Descartes postulated that persons were a fusing together of both body and soul. For obvious reasons I will not discuss whether or not corporations posses bodies, it should be self-evident that they do not. Corporations do consist of many material items, i.e., desks, chairs, machinery, buildings, etc., but these cannot be said to be a part of the body of a corporation, unless of course one is using body in a symbolic and an inorganic sense, which is antithetical to Descartes use of the word in reference to personhood. What about souls then? If there are such things as souls, it seems impossible that a corporation could posses such a thing. Souls seem to be possessed by beings which are capable of making moral decisions or as some have argued, given by god to certain creatures, most notably, humans. Regardless of which creatures posses souls, I doubt that most people would be comfortable in saying that a corporation has a soul in the religious sense, for it seems preposterous to say that god would grant an abstract legal and inorganic being such as a corporation, a soul. The common Western religious belief is that god grants a being its soul at the moment of its conception, a corporation however, cannot be conceived in the same manner in which most creatures come into existence. Another example of why it is difficult to view a corporation as having a soul, can be seen in the following: corporations, since they are not given life, are also incapable of dying. They may be bought out, sold, dissolved, or go bankrupt, but this is all together different from dying, which is a common and shared trait of all organic beings. Lastly, a corporation cannot posses a soul, because beings which do, are morally responsible for their actions, and are said by most Western religions to be judged by god and therefore are either punished in hell or are rewarded in heaven. It is absurd to say that god would judge a corporation in a similar manner as he does with human beings, sending them to heaven or hell. Usually, when a person says that a corporation has a soul, what is meant, is that the corporation in question has a heart or is socially responsible, and not that it possesses the same type of soul which is used in Western religious texts.
Some might say that philosophical and common language definitions are superfluous to our arguments for and against a corporation being viewed as a person, for the definition of “person†is a legal one. First, this is a misguided assumption, for the creation of laws is usually a reflection of a society’s deep-seated religious and philosophical beliefs. Laws are not created in a legal vacuum free from the beliefs of a society, but are instead, reactions to societal concerns framed within the context of the Constitution. Two, since little legal argument has ever been given as to how a corporation can be viewed as a person, yet legitimized by law as such, means that to analyze this concept we have no recourse but to look beyond law in hopes of finding justification by using alternative methodologies granted by other disciplines. When law does not justify its own rulings, it becomes the responsibility of those who are governed by those laws, to de-construct those same laws which have never been tested. The legal statement which set the future precedent for how we ought to view corporations was never qualified by any legal justification, but was instead, given only as an opinion by Chief Justice Waite. Staying within the context of law, and casting aside the historical process by which laws become entrenched within our culture, there must be some way for us to get a clear understanding of what is meant by a person. Our greatest and most valued legal document is The Constitution of The United States. It seems then, that no talk of personhood could be complete, without examining what the Constitution defines as a person. Personhood in the legal sense, is defined in clear and concise language in the opening paragraph of the 14th Amendment, it states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.†In order for someone to be considered a legal person within the eyes of the law, and thereby protected by our Constitution, they must be born or naturalized as a citizen of the United States. As I made clear in my above arguments, a corporation cannot be born nor would it be capable of being naturalized as a citizen. A clear example as to why this is impossible in a legal sense, can be readily seen, for people are proven in the eyes of their government to legally exist by means of a birth certificate. Corporations on the other hand are not and cannot be granted a birth certificate. It is equally absurd to say that a corporation could be naturalized, for it is impossible for a corporation to take the oath required for citizenship. It is discomforting that we grant an abstract entity such as a corporation more legal rights in this country than we do our legal immigrants, for though legal immigrants seem to posses the same rights as citizens, in fact, they do not, for they cannot vote and can always be subjected to deportation. Corporations on the other hand, use lobbyists to obtain favorable laws, get direct access to politicians by giving large campaign contributions thereby circumventing the democratic process, and are never in fear of deportation.
To further show how corporate beings differ from human beings, I have comprised a list of differences:
1) Corporations cannot be conceived through copulation, they are not born, and cannot die. They are, as long as assets are passed on, immortal.
2) A human being can only be in one place at one time. Corporations however, are capable of spreading their dominance and physical infrastructures across the globe, interfering on a mass scale with other cultures.
3) People are legally and morally responsible for their actions. Corporations though they can be fined, cannot, like ordinary citizens, be incarcerated or put to death by a system of capital punishment. The only deterrent to stem their abusive tactics is monetary loss, but since any monetary loss is usually passed on to the consumer, this is really no deterrent at all. We do not punish society for the wrongdoings which criminals incur upon people, so why should we allow corporations to pass on the costs which their abuses create, to the society which they are supposed to be serving? True, top managers can be held responsible for the crimes of a corporation, but usually, if convicted, they will be incarcerated for very little time (if at all) and no penalty except monetary fines, which once again is passed on to the consumer, can be given to the corporation. It is highly unlikely for any C.E.O. to be incarcerated in the first place. Even when his or her company is found to be grossly negligent, causing by means of a faulty product, the death of an unsuspecting consumer, he or she is usually quietly dismissed from their management position with a substantial pension. Our laws protect corporations by shielding those in power from having to accept responsibility for criminal actions, by turning all legal rulings into a monetary calculation. Our society also does not subject corporations to the same level of scrutiny that corporations subject the working class people to. There is little to no internal watching of management, instead, they are left to do as they please without interference or critical examination by those under them or by society at large. Yet, employees are routinely monitored by their employers using a host of tactics: monitoring e-mails, emplacement of security cameras, encouraging for the sake of efficiency and competition an environment of paranoia and distrust, regular evaluations, and the constant gaze of the managers themselves. Our government has a system of checks and balances in place to ensure the security of our freedoms, and is also, at least in theory, subject to open public review. Why do we demand so much less from corporations than we do our government? Lastly, as I have said in my above arguments, corporations are in no fear of being judged by god, for they do not have a soul which will either be rewarded in heaven or punished in hell. Morally, legally, and religiously, corporations have little to worry about, instead, their sole worries stem from monetary considerations. Moral actions are calculable by a monetary calculus and based solely on the bottom line. Corporations strangely enough, enjoy more rights than the common citizen and are less likely to be held responsible for their criminal actions.
4) Since a corporation does not have a mind, it therefore, cannot reflect upon its moral actions. And since the amassing of wealth is the main goal of corporations, they are therefore less inclined to care about any altruistic considerations which stem from social cooperation amongst individuals that do not in some manner lead to a profit being made. Also, a corporation since it cannot reflect upon its own actions, cannot grow and learn from those actions, thereby applying them to the building of a strong moral foundation. The growth of a corporation is usually viewed in light of its assets, not in light of its personal moral growth.
5) Corporations in a biological sense, have no genetic material, and therefore are not concerned with their continuation as a species, the continuation of other species, nor need they have any concern for the environment they live within. Corporations are free to pollute, for they do not have to fear the effects that their pollution may cause their own species, for corporations have no genetic material which is passed on to successive generations as they evolve in reference to environmental factors. The only survival which corporations are concerned with is the continuation of their business practices and the amassing of capital wealth. Social, moral, and environmental wealth, in the eyes of business, are viewed as antithetical constraints which unjustly hamper their progress of domination over humankind and nature by the “rational†business machine. Morality in the context of a larger societal good, having no calculable monetary value is ignored and oftentimes considered to be bad for business.
6) Corporations having no bodily form, can grow to proportions which are beyond restraint, for they have no genetic blueprints which limits their growth. There are no biological traits by which to classify a corporation as belonging to a certain species. This means that a corporation can grow with the expansion of its infrastructure, to proportions unaffected by any internal biological constraints. Being an inorganic legal entity means that evolution does not apply to corporations, except as an analogy, which means that corporations will only change in reference to their environment through the decisions made by those who fill the ranks of top management positions. All creatures grow within certain proportional limits to its species characteristics, i.e. humans have an average height and weight, just as most species do. Growth which cannot be contained is oftentimes viewed to be abnormal, which is the case with certain hormonal growth diseases. Rampant and uncontrollable growth, within a being, is also said to be cancerous. However, as stated above, since a corporation has no biological traits, they cannot be said to be cancerous in the same sense that cancer grows within bodies, but can be said, metaphorically, to be cancerous within a societal context, that is, whenever a corporation’s growth is unchecked by necessary constraints and no longer serves the needs of the bodied whole, i.e., society.
7) Corporations having more economic resources than the average citizen, can oftentimes influence law and even have the privilege of obtaining the best legal advice available for their court cases. The line between those in business and those in politics is almost nonexistent, for many politicians become lobbyists for corporations and many former heads of corporations are politicians. Wealth also grants corporations more legal choices in the quantity and quality of lawyers which they then utilize in crafting more persuasive defenses. The average citizen however, having little money, is oftentimes left with limited legal choices, and in the case of being poor, have to make do with court appointed lawyers. How many corporations would feel that justice was served if they were appointed by a judge, a single court appointed lawyer to represent their case?
8) Humans and most creatures, lack the ability to combine or split without impudence. Corporations however, can shed assets and employees in order to maintain their financial buoyancy, or can merge with other corporations to become larger and more powerful. Humans are incapable of joining with other humans in order to benefit from another individual’s abilities, such as their physical strength or intelligence. This gives corporations powers of transformation which are unheard of in the natural world, and gives them the ability to morph. into new larger corporations or into smaller corporations which shed unfavorable subsidiaries in the name of profiteering or to enhance their public image. Such amazing transformations allow a corporation to dodge having to take responsibility for failed actions which may lead to larger social ramifications.
9) Corporations are permitted without challenge, to reshape public discourse through media manipulation by introducing into our common vernacular words which are never qualified. In many cases media companies which are supposed to objectively cover what takes place in our society, being owned by the same large corporations which wish to hide their activities, are unfairly biased when it comes to reporting to the public, their own activities. The average citizen, having almost no access to the same media resources as corporations do, have little ability to shape public discourse. Words and language are slowly being transformed into a business friendly vernacular, a few such examples are: Laying people off to boost stock prices becomes “downsizing†or “strategic reorganization†which maintains corporate efficiency. People who are concerned about the criminal polluting of our environment become “environmental extremists†who are bent on the destruction of the economy. And disagreements between labor and management over pay, pensions, or benefits, becomes a “labor dispute†as opposed to a dispute over just compensation for employees labor. Also, what is rational becomes understood only in terms of economic well-being. Science too, having become infected by business needs, has become that which maintains a robust economy by means of generating new technologies that spinoff an endless procession of new gadgets. Efficiency, as it has become defined by corporations, is the new methodology which shapes our institutions, instead of social responsibility being our guide. Instead of moral considerations, the amassing of wealth is the motivating factor which guides the actions of corporations. And lastly, education and knowledge have become subservient to the needs of the economy. These are just a few areas in which we no longer see our own subservience to the needs of corporations, for our existence has become an economic existence, unable to separate the manipulated reality imposed on us by way of total monetary intrusion into every aspect of our lives, from that of a free existence which creates for itself, meaning beyond that of financial fears and economic considerations.
10) Corporations foster competition amongst employees, while joining together behind closed doors to establish deals which create larger monopolies, thereby negating competition at the level it is needed most. This ensures that capital wealth stays at the upper levels, inflates prices, and ensures large returns for the few giant corporations which are at the top. The average citizen is at the mercy of their employer, who ensures that employees are kept aware that there is always a long line of people waiting for their job. The replacing of employees becomes an easy affair, for there will always be new people to replace those that management dislikes. Employees are fired and are oftentimes subjected to verbal and written denouncement, while managers and C.E.O.’s are given severance packages, “golden parachutes†which soften their fall, and are usually granted new positions at other corporations. Competition at the lowest levels ensures that employees will work hard and maintains a culture of paranoia which is then utilized against employees, one against the other, in order to maintain order in the work place. Although employees are always under scrutiny and are subjected to decisions which they have little say in helping to finalize, managers on the other hand, have closed meetings which are held far from the peering eyes of the populace or their employees, and out of the reach of a democratic decision making process.
So far we have loosely examined various definitions and characteristics which may or may not be sufficient in describing what personhood means. I have also shown some of the ways in which corporations differ from other beings, especially that of the average citizen. As has been shown above, a corporation does not posses a mind, a body, or a soul, and although this in no way completely rules out that a corporation cannot be viewed as a person, it does however, point out the difficulties in justifying it as such, for if we find it difficult to define for ourselves what it means to be a person in the human sense, then it must be equally if not more difficult to define personhood for something as abstract as a corporation. Should we even be worried about an accurate definition for what we mean by a corporate being? Are there any moral reasons for doing so or are there only practical considerations to be made?
A person is not whatever a judge haphazardly decides is legally most prudent. Instead, deliberation on such a concept involves a dynamic process which examines multiple arguments given by different disciplines, which take into account the moral responsibilities inherent with any definition concerning personhood. It is up to the people after hearing the best arguments, whom corporations serve, i.e. the average citizen, which must ultimately decide whether or not the law ought to include corporations as legitimate persons. Unfortunately though, the law, which has been poisoned by corporate interests and routinely gives little justification for its biased rulings in favor of big business, can no longer be viewed as rationally embodying the values of the populace, unless of course, we admit that the populace as a whole has also been transformed by corporate manipulation into a body of people whose values only reflect corporate interests. If this is true, then it may already be too late for society or for any individual to create for themselves, a system of ethics which is capable of transcending the values imposed by our intrusive economic model. Such a view means that freedom is no longer understood, except in monetary terms, i.e. freedom becomes a concept which is only understood as that which maximizes wealth. Freedom becomes the freedom to exploit in the name of economic gain.
Without going into lengthy explications as to how to fix our current system, I will instead offer a few examples of what could conceivable be done. Democracy could be extended to cover corporations, making every action and decision made, transparent to the populace. Corporations after all, just like politicians, play a large role in shaping our society, for their actions more so than the average citizen, effects the public as a whole. The average citizen could be given more say as to the decision making process of businesses and could also be given more power in formulating laws which govern corporate behavior. Laws could be established which held corporations or those in charge of corporations criminally responsible, instead of just being financially responsible for their actions. The charter system for granting corporations their legal existence could be re-invented and made legally viable in order to ensure that corporations meet the requirements as set forth in the charter, and if they fail to do so, could be dissolved or turned over to its employees or the government which granted the corporation its charter. Employees could be encouraged to have a greater stake in corporations, owning the assets and controlling the productive means of the corporations they work for. Managers could be elected by employees and held to the same standards of review as they subject their employees to. A system of checks and balances could be established to ensure that no corporation gains an unfair advantage or power over other corporations or over that of the populace as a whole. People could be encouraged to speak out without fear of dismissal about the wrongdoings of the corporations they work for. The list could be extended in many pragmatic, rational, and creative ways. In questioning and offering possible solutions to complex problems, we do not destroy our society or democracy, but instead, we make it better, for our society is founded on principles which challenge oppression wherever and in whatever form it manifests itself in. The above suggestions are also, in no way exhaustive or solely qualified in their portrayal of legitimate solutions, they are instead, only meant to spur debate and show that given time and ample resources, the possibility of producing viable solutions which benefit society, are capable of being found. A simple question must be asked and answered by each of us: Whose rights does a want of liberty maintain, what persons shall be free, we the people or those of corporate beings? If we as citizens cannot control the actions of corporations, then the actions of corporations will control us.
Works Cited
Douglas, William, O. The Court Years. New York: Random House Inc., 1980.
Honderich, Ted. The Oxford Companion to Philosophy. Oxford: Oxford University Press, 1995.
Copyright 2001
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