Abstract
This paper consists of brief critical comments on Chapter 8, “Personifying Group Agents”, of Christian List’s and Philip Pettit’s book Group Agency (2011). A first set of objections concerns the chapter’s history of ideas. List and Pettit present the history of the idea of corporate personhood as divided between “intrinsicist” and “performative” conceptions. I argue that this distinction does not fit with the historical record and that it makes important political and legal divides and battles invisible. A second set of criticisms builds on perspectives provided by the sociology of knowledge and by John Dewey. My guiding thought here is that “person”, at least when the term is applied to groups, is what political scientists call an “essentially contested concept”. My third set of comments targets the rudimentary political philosophy of List’s and Pettit’s book. I suggest that List’s and Pettit’s corporate personhood theory turns out to be normatively irrelevant; that their concept of “respect” is marred by an ambiguity; and that it remains unclear how their work constitutes progress in guarding against corporate power.
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Notes
One of my referees suggests the following line of response to the above. (She or he regards this response as an improvement over List's and Pettit's views.) The realist and the intrinsicist positions are almost identical. Both are problematic. Hence we should shift to alternatives to both. And here the performative view is superior to the fiction theory. Hence we should accept the performative view.—Maybe so. (It is hard to judge without more of an argument.) But in any case, List and Pettit seek to combine the realist conception with the performative view. And it is this combination I am criticizing in the text.—The same referee also asks whether I am assuming that "the history of ideas displays a coherent outlook on the matter of group agency". If not, then I should let List and Pettit pick and choose from the historical record. I am happy with them picking and choosing. My criticism is that they do not sufficiently justify their choices, and that their specific choices make it difficult for them to understand the political realities in which debates over corporate personhood have taken place in the past, and are taking place today.
I have not made an independent study of the historical record concerning Pope Innocent IV's political motives. I offer Dewey's comments as an example of how he approaches the study of corporate personhood. I wish to highlight Dewey's general strategy, not to insist on the details of its present application.
One of my referees suggests that in so arguing Avi-Yonah actually invokes a central idea of the performative theory. But note, the idea is not that "to be real is to be able to argue that you are real", it is that "in order to be able to argue that you are real, you must already be real".
List and Pettit think that only by distributing similarities and dissimilarities in this way can we avoid the normative mistake of absolving corporations of their responsibility. This bring us to questions of political philosophy that I shall address in the final section.
Herlinde Pauer-Studer has suggested that I might be reading too much into List's and Pettit's talk of "corporate slavery", and that this term is perhaps just a flowery phrase without deeper systematic significance. I concede the possibility of such a reading but am unable to find evidence for it in the text. I also note that in our discussions List and Pettit have not used this line of defense.
I emphasize the "politically interesting" in order to exclude, say, the respect that the slave–owner may have for the slave's skills.
One of my referees has urged me to concede that my criticism of List and Pettit is not based on a worked-out alternative and that "there ought not to be a presumption that there is a coherent position anywhere in the legal or philosophical tradition". I am willing to concede both points. I hope the referee will concede in turn that there ought not to be a presumption that in order to have a legitimate criticism of a philosophical position one must already have a worked-out alternative.
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Acknowledgments
I am grateful to the participants of the workshop, especially to Christian List and Philip Pettit, for many helpful discussions. For comments on a first draft I am indebted to Herlinde Pauer-Studer, Hans-Bernhard Schmid, and two anonymous referees.
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Kusch, M. The Metaphysics and Politics of Corporate Personhood. Erkenn 79 (Suppl 9), 1587–1600 (2014). https://doi.org/10.1007/s10670-014-9630-0
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DOI: https://doi.org/10.1007/s10670-014-9630-0