Volume 11, Issue 1 - Human Rights​ and the Rights of Non Humans; Guest Editors: Tali Amir and Iddo Porat

Does the ontology of corporations matter for corporate rights? Much of the philosophical literature on corporate rights focuses on whether corporations are real entities, aggregations of individuals, or fictions to which rights or other entitlements can be ascribed. We argue that this focus is misplaced. Whether corporations have rights, and the sort of rights they have, is a question of moral theory. It is not fundamentally a matter of ontology, as F.W. Maitland thought, or a matter of legal or moral semantics, as H.L.A. Hart once argued. The going moral theory, not conceptual requirements or explanatory criteria, determines the conditions a corporation must satisfy to have various rights and duties. We argue that this truth is independent of the deontic, consequentialist, or hybrid character of the moral theory. This paper defends three claims. First, the ontological status of a group as an intentional agent is neither necessary nor sufficient for its moral status or entitlements. A moral theory in principle could recognize groups that are not intentional agents, and a group’s existence as an intentional agent does not by itself require moral recognition. A moral commitment to corporate rights and duties is therefore not determined by the indispensability of groups in explaining group behavior. Second, the substantive claims of a moral theory (understood broadly) determine the conditions for assigning rights and duties to corporations. Third, this moral conception of corporate rights has both legal and moral implications for the treatment of corporations.

Historically, a corporation was regarded as an artificial creation of law possessing only what rights and powers its constituting charter confers upon it. This “concession” or “grant” theory has been eclipsed, especially in the United States, by the view that the corporation is a mere association of natural persons, and that its rights are those of its “members” and “owners,” the shareholders, who, as persons and citizens, bring even constitutional rights to the corporation. This associational view rests on a triple confusion. First, it confuses the corporation (the rights-bearing corporate entity) with the corporate firm, which is associational, leaving the impression that the corporation can be reduced to natural persons. This underwrites the second confusion, that the business corporation is a member corporation, with the shareholders as members, when in fact it is a property corporation without members. The histories of the Dutch and English East India Companies are drawn on to explain the origins of this second confusion. Third, it confuses the member corporation with a partnership, when it imagines that the rights of the corporation are simply those of its individual shareholders. Instead, as maintained by the grant theory, a corporation should only receive such rights as are conferred on it by charter or statute on the basis of policy considerations.

The article aims is to show that the jurisprudence of corporate law, and specifically the theory of corporate personhood, lacks almost any explanatory power for legal doctrines and rules it is thought to inform. The article argues, first, as a matter of theory, that the different models of corporate personhood (the concession model, the aggregate theory and the real entity theory) do not carry normative weight to inform significant, concrete legal conclusions; and second, as a practical matter of legal doctrine, that the Supreme Court’s rulings on corporate rights deploy the theoretical models of corporate personhood interchangeably and inconsistently, to the effect that the same theoretical models are being used to suit contradictory purposes. As corporations are increasingly dominant in all aspects of social, political, and economic life, the article argues that reformulating the theoretical foundations that underlie corporate legal status has become especially urgent. The article therefore calls to develop a new discourse for corporate jurisprudence, and suggests that the central axis for this new discourse should be the substantive influence of corporate power on shaping the public sphere.

Although on election day each vote carries equal weight, in the U.S. there is a strong correlation between policy and the preferences of the affluent, and a weak correlation between policy and the preferences of the middle class or the poor. This state of affairs can result from unequal input into the democratic process. If a democracy allows unlimited private financing of political campaigns, then prior to elections wealthy citizens or businesses can gain greater influence than others on the political discourse. In addition, there is a danger that elected representatives − who wish to be re-elected − would decide in ways that serve the interests of their big donors. In this article, I discuss an important aspect of money’s influence on politics, namely whether corporations should be allowed to participate in the financing of campaigns. This issue produced intense disagreement over the last several years, following the U.S. Supreme Court decision which held that restrictions against corporate campaign finance are unconstitutional since a corporation’s right to freedom of political speech is no less than a citizen’s right to freedom of political speech. Since in my opinion the Court’s position is seriously mistaken, I find it important to look at the arguments the Court provides and try to refute them.

Corporate entities enjoy legal subjectivity in a variety of forms, but they are not human beings. Hence, their legal capacity to bear rights and obligations of their own is not universal. This article lays out a stylized model that explores, from a normative point of view, one of the limits that ought to be set on corporate capacity to act “as if” they had a human nature − the capacity to commit crime. Accepted wisdom states that corporate criminal liability is justified as a measure to deter criminal behavior. Our analysis supports this intuition in one subset of cases, but also reveals that deterrence might in fact be undermined in another subset of cases, especially in an environment saturated with plea bargains involving serious violations of the law.

Recent literature suggests that organizational entities, such as states and business corporations, can qualify as moral agents. Does it follow that, as members of our moral community, group agents are entitled to moral protections? This article explores the connection between groups’ moral agency and moral rights. I argue that corporate moral agency does not, in itself, ground a group’s claim for moral protections. Nevertheless, a group agent can be entitled to derivative moral rights protections, which attach to the group itself but are grounded in the interests of individuals, such as the group’s members. Furthermore, the agential status of a group helps to identify which rights can attach to it, given its moral agency. One such moral agency related right is a right not to be morally subverted. This right generates a duty for the group agent’s members to ensure that its decision-making process incorporates sound moral reasoning. The final part of the article applies these conclusions to recent debates on the rights of states. I argue that, as moral agents, states have a moral right not to be morally subverted. It follows that citizens have a pro tanto duty, directed at their state, not to engage in political activities that would subvert its moral powers.