In the build-up to the writing up of my paper which is a critique of corporate personhood as a legal fiction for the LW928 Law and Humanities modules, as I was researching, I realised that there are many other ways at which we could look at corporate personhood. From philosophical, organisational to psychological and sociological dimensions- the corporate person does not only have legal implications, something that we often forget as lawyers. I have thus decided to concentrate on the philosophical side of the concept and analyse moral personhood for two of my blog posts. This first post will be about two arguments in favour of moral personhood.

It is also helpful to first set out that the corporate personhood is a legal fiction, in the way that, put very simply, the law treats it as a person but we all know that it is not a ‘natural’ person in a literal manner.

Firstly, moral philosophy believes that corporations, along with their legal rights and duties, also have moral rights and duties. Just like natural persons, corporations should bear the consequences of their actions and assume responsibility for them.[1]

“The presence or absence of corporate moral personhood determines whether corporations are subject to blame for their failure to meet [their moral] obligations.”[2]

Philosophers in favour of the corporation having moral responsibility theorise that the corporation has both the intentionality and ability to act. This means that, despite the fact that a corporation depends on natural persons to run it, all the moral responsibilities and duties cannot be solely attributed to them. By colluding to make up the corporation, which claims rights as an individual ‘person’ under the Bill of Rights, the actions of the each of the individuals become one big corporate action. The underlying principle being that if the corporation wants to claim rights as a person, it should be as liable as a natural person would be when it engages in ‘immoral’ actions.

“It is not always appropriate to limit moral responsibility to the
individual members of the corporation because sometimes immoral
corporate actions are the result of a series or combination of blameless
primary individual actions. No one person is at fault for the harm
caused by the collective corporate act.”[3]

It is quite hard to track who has done what in large corporations and tracking who is to blame when decisions go wrong can be somewhat an impossible task in large corporations. It will most probably be a combination of the actions of multiple individuals. Hence proponents of the moral corporate responsibility theory think it is easier to attribute the burden to the corporation as a whole.

Secondly, philosophers have found a different way to establish corporate moral personhood by projecting the moral features of human beings onto the corporation. Goodpaster and Matthews argue that ‘rationality’ and ‘respect’ are the two components that make the human beings morally responsible.[4] By way of analogy, because corporations possess the ability to research, calculate risks and evaluate the potential impact of that some decisions might have, they prove that they can be both rational and can show respect. They can thus be considered to be moral persons. As giant business and financial players, corporations might actually have access to more information than a normal individual will ever have which cements the argument that they should be moral ‘person’ even more.

The overall underlying justification of those in favour of moral personhood for the corporation is that if the latter wants to have the same rights as a person, it should also have the same moral responsibilities. For them, the corporations have no excuse to not be morally responsible as it possesses more than enough resources to take sound decisions that are not harmful to society.

[1] Paul B. Thompson, Why Do We Need a Theory of Corporate Responsibility? in SHAME, RESPONSIBILITY AND THE CORPORATION 113, 116 (Hugh Curtler ed., 1986).

[2] “Michael J. Phillips, Corporate Moral Personhood and Three Conceptions of the Corporation, (1992)2 Bus. ETHICS Q. 435, 436

[3] Susanna Ripken,  K. “Corporations are people too: a multi-dimensional approach to the corporate personhood puzzle.” (2009) Fordham J. Corp. & Fin. L. 15 : 97.

[4] Kenneth E. Goodpaster & John B. Matthews, Jr.’ Can a Corporation Have a Conscience’ (1982) HARV. Bus. REV;  132, 134.

There is this wide sentiment that corporations are really bad for the society in general because of their contribution to environmental woes for example, or for creating inequalities in wealth distributions in a very capitalistic era. The scale of corporate activity and its influence on everyday life have made people realise how much of a grip these institutions, which are legal fictions,  have on our daily life. This is quite a frightening realisation and people have been vouching for corporations to have moral responsibility and restrictions because after all they have ‘person rights.’

However, attributing them moral responsibility can sometimes not be the best move, however unpopular this assertion might be. In this second blog post about the philosophical dimension of corporate personhood, I analyse the other side of the moral personhood, that is, arguments against corporate moral personhood.

Proponents of this theory argue that the corporation itself cannot have blameworthy intentions but rather, it is the individuals who run it who possess those. Hence, only the individuals can be held morally responsible for their actions.

“Moral personhood requires a certain level of autonomy: moral responsibility for an act can be attributed only to the person who originated the act in his own body, a body over which he or she has direct autonomous control.  Since corporate action never originates in a body belonging to the corporation, but in the bodies of human beings who directly control their own actions, corporations do not originate acts in the manner required for moral responsibility to apply.”[1]

The rationale here being that, since corporate action can never happen without human beings triggering them, the corporations cannot be moral. Here the corporate form wants to be treated as a person under the law but does not want the ‘moral’ responsibility that comes with it as it does not have a ‘body’ its own from which actions can originate. It ironically embraces its fictional side here. Other philosophers have argued that corporations cannot possess the intentionality needed for them to be morally responsible as they do not have minds to think on their own. Whilst others argue that even if we are able to establish intentionality, it would simply not suffice as corporations cannot feel emotions. [2] Whilst human beings can feel regret or remorse for making immoral choices, corporations cannot feel the same, they cannot empathise and this solely invalidates the moral personhood theory.

Secondly, some philosophers fear that granting corporations moral personhood would also mean granting them moral rights. This would mean that corporations would expect to be treated like a person and be respected as such and this is a very uncomfortable notion for society.[3] After all, we would be treating a ‘fiction’ with respect that is normally reserved for human beings. To explain this Ripken invokes Kant and his theory of means and ends;

“According to Kant, all human beings are ends in themselves and should always be treated as such, never as means to another end. In contrast, corporations are human creations that are formed as means to achieve the ends of those human beings who choose to participate in the corporate enterprise. If corporations have the same moral standing as natural persons, then corporations are entitled to the same moral rights, in particular, the right to be treated as an end in itself.”[4]

If they are treated as ends themselves, it would just open the floodgates with both Ladd and Ripken arguing that for example, the closing down of the corporation would be considered to be ‘murder’ as it means it would metaphorically mean that the corporate person is dying. So to avoid these strange assumptions from concretising, the corporations should only just be treated as ‘machines’ that were put in place to advance human ends and should therefore not be given moral personhood and have moral rights and responsibilities. [5]

[1] Susanna Ripken,”Corporations are people too: a multi-dimensional approach to the corporate personhood puzzle.” (2009) Fordham J. Corp. & Fin. L. 15 : 97.

[2] Rita C. Manning ‘Corporate Responsibility and Corporate Personhood’, (1984) 3 J. Bus. ETHICS 77, 80

[3] John Ladd, Morality and the Ideal of Rationality in Formal Organizations, (1970) 54

MOIST 488, 500

[4] Ripken at 123

[5] Ibid

The recent case of Jussie Smollett, actor in famous US TV show ‘Empire’, has gripped the attention of the media and the world in the past year. Whilst I do not attempt to find who was really guilty (because who knows ?After all, all charges were dropped against him.) my main interest lies in the way the story was told and how the actual court and the court of public opinion portrayed and judged him.

On 29^th January 2019, Chicago police announce that they’re investigating “a suspected racist and homophobic attack, by two masked man”[1] on the actor. The latter had a chemical substance thrown at him and had a rope wrapped around his neck. According to the actor, during the assault the perpetrators shouted that it was a ‘MAGA country’ (Make America Great Again), famous slogan often used by President Trump and other racial slurs. The case was treated as a hate crime, Jussie being gay and from an ethnic minority. Following those reports, there was an outpour of support towards the actor from celebrities, fans and many more expressed their anger against the outrageous nature of the crime. Jussie described himself as a ‘gay tupac’.[2]

A couple of weeks later, plot twist; reports emerge that Jussie has actually paid the two attackers (who were had worked as two extras on Empire and had known the actors according to their lawyers) to stage the attack. Jussie refused to give his phone for investigations and when he did submit his data, he blurred some messages out. Coupled with the other twists about the fact that the perpetrators were actually black, to which Jussie responded “if I had said [the attackers] was a Muslim, or a Mexican, or someone black, I feel like the doubters would have supported me a lot much more.” and suggestions that he actually paid them to help him train to get in shape for a video he was going to stare in, that was enough to cause a shift in opinion. The police charged the actor with a case of false reporting.

He did lie about the colour of the perpetrators. However, the powerless, gay black man who had acquired so much support, pity and attention, was suddenly the bad guy. Even if the court later dismissed the actual case of false reporting, the police still believed that he was guilty and have since sued him to cover the cost of the manpower involved in investigating the case, which could have been otherwise efficiently used according to them. Most importantly, where the narrative really switches is where the same articles online that would describe him in such an innocent, ‘victimised’ light (before the false reporting allegations) described the drop of all charges against him with a hint of suspicion. The same people who commented on online threads and news outlets ,who were outraged when he was attacked, had suddenly changed their opinion and accused him of not only being guilty, but that he was free just because he had ‘money’, was ‘famous’ and bought his way out of the system.  Empire had decided to get rid of his character for some episodes and it is not sure when or if his character is going to return. He was so longer the vulnerable ‘gay Tupac’ but he had turned into this manipulating monster that was capitalising on a sensitive subject (racism and homophobia) to gain fame. Whilst we still do not know what the truth really is, it is very interesting to see how the court of public opinion can ‘make and unmake you’, using specific narratives to paint victims and perpetrators and manipulating them. In this story, the vulnerable victim from a marginalised background turned into the powerful big bad wolf in a nanosecond.  Imagine this happening in a real court of law- oh wait, it does already !

[1]BBC News accessible https://www.bbc.co.uk/news/newsbeat-47317701

[2] Ibid

As Dr Silveira of the University of Cambridge has said in one of his papers, Justice is a moral concept that is very elusive and bears no universal definition, despite the agreed notion that everyone should be given what they deserved. The meaning of justice changes according to differing cultures, circumstances and values. So how has the idea of justice changed over time? Inspired by an online article about the topic, I provide a brief overview of some of the most famous conceptions of the notion of ‘justice’ below.

Classical justice as propounded by Plato, is a ‘human virtue’ which would entail that the individual has to balance numerous parts of his soul namely; reason, desire and spirit. Everyone would deal in a fair way in society and will fulfil their duty in   right way and place. This would eventually mean prioritising what society needed and not what the individual wanted- this concept of justice eventually carries notions of a totalitarian regime. While Aristotle would even claim, in Politics, that some people need to be treated in a different way by the law than others, for the greater good, as they are “natural slaves”.

Medieval justice was most famously advocated by St Thomas Aquinas (especially in Catholicism) whose theory is that justice is when one person gives the other only what the latter is due, despite this not being equal. Moral law plays a great part in his idea of justice. He was also a firm believer that there is a just price for everything.

Modern justice on the other hand, is rooted from the period of the Enlightenment, pushed under the spotlight by Kant. This idea of justice is based on how we are all equal before the law and this concept of egalitarianism is expanding more and more to all categories of human beings- from men, to women and children. Marx and Smith have also pushed forward a form of distributive justice that gives the general idea that goods should be distributed according to the moral, rights-based values or in the case of Smith, according to the market.

However, this is just a few examples of how the notion of justice has changed over time. There are plenty more theories and as aforementioned, the idea of justice still differs according to different cultures and circumstances.

The body… is caught up in a system of constraints and privations, obligations and prohibitions
– Michel Foucault, Discipline and punish

I have recently read an article online which connects Foucault’s concept of biopolitics to that of state racism- the piece was so fascinating that I have decided to explore the concept of biopower a little bit more in this brief article. Biopolitics can briefly be described as being the politics of governmentality of life, through the human body. The concept mainly encompasses all the strategies, mechanisms or ‘dispositifs’ as Foucault would say, that govern human life through the ‘technologies of control’, which are numerous forms of authority on knowledge and power. To quote what Foucault said in The Will to Knowledge: The History of Sexuality, these technologies of control exist “to ensure, sustain, and multiply life, to put this life in order”.

Biopolitics is hence, about the human body being subjugated to the technologies of control disseminated through the numerous branches of the social body such as healthcare or punishment (and many more) so that, at the end of the day, the body is functioning according to the norms. Hence, the body becomes ‘normal’. Foucault explains that the concept of biopower also means that the historical power that the sovereign had over society, has thus been split up and extended to these technologies of control. Insomuch that when, for example, an individual is imprisoned, it is no longer to protect the sovereign alone, the argument used to justify the imprisonment is that society as a whole needs to be protected against the offender.

As articulated by many scholars and critical thinkers in the articles regarding Foucault’s work, it is this shift in the dissemination of power, that is, the protection of society instead of the Sovereign alone, that has given rise to state racism. Foucault holds that the post powerful race is the one which is able to define the norm-what is good and what is bad. So that biopolitics entail that there is constant war between this powerful race and the individuals that go against its norms. In his lecture series titled Society Must be Defended, he says

“a racism that society will direct against itself, against its own elements and its own products […] the internal racism of permanent purification, and it will become one of the basic dimensions of social normalisation”

Can this be related to the numerous modern forms of institutional racism that many people face nowadays? Foucault was most certainly right with this theory of biopolitics and state racism, seeing how the income inequalities, the unfairness in the criminal justice systems of many countries (racism by police officers for example) and all the disparities in education, healthcare and fairness in general, rage on across the world.

In Foucault’s Discipline and Punish, he tries to illustrate and analyse the historical development in the punishment system and style over the years. From the cynically crude scenes of the public execution where each body part is being ripped apart to the contrasting routine of the modern penal system of incarceration-it is all about the body. Foucault is very much interested in examining the relationship between power and the infliction of bodily pain but also by going beyond the physical realm of what the body represents. The power that is exercised when punishing is different from the violence that affects the body physically in the modern era, its main aim is to change people mentally as well and to make them more ‘normal’.

The prison’s ‘rehabilitative’ or ‘reformative’ function of removing the ‘subnormal’ or ‘abnormal’ individual from society for a period of time and making him ‘normal’ again by imprisoning him speaks volumes. It essentially means that there are certain norms or standards that people need to conform to in order to be considered as normal. If one follows and adheres to the ideologies of the society he/she is living in, then he/she is a normal, law-abiding, citizen. However, if he/she defies those ideologies, then a temporary removal from society is needed to enable ‘re-normalisation’. So, the penal system is primarily a system of exclusion. Is Foucault suggesting that norms are present only to constantly measure, control and evaluate our behaviour? He most probably is. Is he saying that punishment in the form of the prison is less concerned with justice but more so with the “manipulation of the body and soul” (Discipline and Punish)? He most definitely is- it is more about obedience than justice.

Orwell’s dystopian novel imagines the ‘worst of all possible worlds’, where all the social, political and religious institutions have broken down as a result of never-ending war, leaving the population oppressed by the ‘government’ (the ‘PARTY’) and under its constant surveillance. The story takes place in Oceania which is a super state consisting of Great Britain, the Americas, Australia and many more countries, all under the control of the Party. The main character Winston Smith feels the need to rebel against the Party by writing his thoughts in a book, which is a ‘thought crime’ and by being in a forbidden relationship with a woman named Julia.

One compelling aspect of the novel is how ‘crime’ and thus, ‘law’ are perceived. First, law does not exist at all in totalitarian Oceania. Nothing can be illegal as laws do not exist anymore. Yet, if Winston is caught writing his thoughts down in his diary, he could be executed or given 25 years of forced labour. The Thought Police has unlimited power to enforce the Party’s views and ideologies and if anything goes against these ideologies or is not in line with the Party’s views, they are classed as illegal.

Now, this makes us question the popular belief that law always has a single and coherent body. For this, I draw upon the question raised in the LW927 Law and Humanities module at the University of Kent of whether “the idea of a coherent body for law still work towards the delivery of justice”. Some might find it hard to relate this question to Orwell’s novel but the key to this lies in the interpretation of the text.

Dystopia is often the product of a fear for the future following actual or past events and to be able to warn people effectively, the scenarios depicted are often the worst possible ones. So, every aspect described in the text is quite extreme but is a fair representation of what is really going on in the actual world. Firstly, the fact that ‘no laws’ exist is an absurd idea; the ‘coherence’ factor in ‘coherent body’ is hence, already thrown out of the water. However, despite this claim, Winston can still be punished if he commits thought crime and eventually the premise that there is no legal body or system is trumped by the fact that there are some things considered ‘illegal’. So, law whether written or unwritten, coherent or not, does exist in Oceania and has existed in any other totalitarian regimes in the past(or present even?) in the real world. The people are still being regulated and oppressed by a certain set of beliefs, ideologies and even ‘rules’. The story goes further as the Party tries to control the population’s behaviour by inventing ‘Newspeak’ a new language where the main tactic is to limit words to restrict independent thoughts and this ‘dumbing down’ will make disobedience unthinkable and the State (the Party) will have absolute power. Is this kind of regulation there to deliver justice? It is very much unlikely.

So, if we take the dystopian and totalitarian factors out of the picture for a moment, we realise that law is always based on a ‘body’ that gives it its power and authority. Whether that body is coherent or ethical, is a completely different question. Wherever this power derives its legitimacy and whether it is morally acceptable, is also a different question.At the end of the day,can this absolute power of the Party in Orwell’s Oceania be considered as a metaphor to the facts of the famous MABO case?