Abstract
The claim that corporations are not people is perhaps the most frequently voiced criticism of the United States Supreme Court decision Citizens United v. Federal Election Commission. There is something obviously correct about this claim. While the nature and extent of obligations with respect to group agents like corporations and labor unions is far from clear, it is manifest in moral understanding and deeply embedded in legal practice that there is no general requirement to treat them like natural persons. Group agents may be denied rights to marry, vote, or run for public office. More generally the need to guard against discrimination, the core injustice in racism and sexism, has no direct application to the case of group agents. There is also something obviously incorrect about the claim that corporations are not people. The legal practice of treating some group agents as persons under law is ancient, found already in Roman law at the time of Justinian. In this essay I propose that reflection on this tension reveals that fundamental revision to the doctrine of legal personhood is needed. More specifically I propose that legal personhood be decomposed into at least two elements—standing and liability—and that legal systems reject the principle that an entity possesses one just in case it possesses the other. The import of this change ramifies broadly. Decomposing legal personhood not only enables a satisfactory account of the status of corporations and labor unions, who as such have liability but not standing, it also enables a satisfactory account of the status of those who as such have standing but not liability: severely mentally disabled persons, very young children (including fetuses), and non-human animals with phenomenal consciousness but lacking capacities to understand reasons and justifications.
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Notes
558 U.S. 310 (2010).
In some jurisdictions in Australia certain group agents have the right to vote in local elections, but this is highly unusual. Though the view I articulate and defend in this essay does not strictly rule out voting rights for group agents in principle, I doubt it would support such rights in ordinary circumstances.
Two cases of significance in the establishment of legal personhood for limited liability corporations were Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), and Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886).
494 U.S. 652 (1990).
I here use the term “personhood,” which is more frequently used by philosophers of law, rather than the term “personality,” which is more frequently used in the law itself (hence also more frequently used in law schools). I make no distinction between legal personhood and legal personality.
It is not only legal personhood which needs to be decomposed; analogous revision is needed to the idea of moral personhood. For further development of this claim see Garthoff (2010; Animal punishment, unpublished).
It is likely that the most psychologically sophisticated non-human terrestrial animals—I have in mind apes and elephants—lack the capacities constituting critical reason. It is more speculative to rule out all whales and dolphins as critically rational, but there is no strong evidence that they are. For defense of the view that only humans are critically rational see Burge (1999).
For a summary of empirical work on animal cognition, see Marc Hauser (2000).
See Garthoff (Animal punishment, unpublished).
For support for this claim see Burge (2010), including especially p 104, pp 431–433, and pp 537–544.
See Garthoff (Animal punishment, unpublished).
Francione (2008) also endorses sentience as the criterion of moral and legal standing (hence also as the criterion of rights-possession), but he resists decomposing moral and legal personhood by claiming all sentient non-human animals are persons in the same sense as fully developed adult human beings. This view is not defended well by Francione, and garners little support from common sense or moral reflection.
The phenomenon of group agency is sometimes labeled instead as “shared agency”; I make no distinction here between those terms. Also, as packs of wolves and herds of elephants illustrate, not all group agents are persons. I restrict my discussion to groups of persons, however, since only these groups have obligations.
This claim is also defended from within a different theoretical framework in Chap. 7 of List and Pettit (2011).
The existence of strict liability in the law also underscores the distinction here, since it is plausible that there is no strict liability within morality as such.
424 U.S. 1 (1976).
For the same reason I do not discuss McCutcheon v. Federal Election Commission [283 U.S. 514 (2014)] in this essay, even though it is a crucial element of recent United States campaign finance jurisprudence.
443 U.S. 622 (1978).
479 U.S. 238 (1986).
494 U.S. 652 (1990).
540 U.S. 93 (2003).
558 U.S. 310 (2010).
In my view this supports not only civil, but also criminal, liability for corporations and labor unions. I do not explore that issue in this essay.
It is unclear exactly what Justice Stevens holds regarding this issue, since his dissent in Citizens United alternates between arguments that appear to deny this claim and arguments that appear to endorse it.
The majority opinion in Burwell v. Hobby Lobby Stores Inc., 573 U.S.__(2014), extends the rights of religious expression and thought to certain artificial persons. This conclusion is not plausibly reached from within the framework articulated in this essay, for it is highly doubtful that such rights could be grounded solely in respect and concern for natural persons and sentient animals.
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Acknowledgements
I would like to thank Brad Cokelet, Jake Earl, Georgi Gardiner, Amanda Greene, Yannig Luthra, Jonathan Peterson, and David Reidy for instructive discussion of an earlier draft of this essay. I would also like to thank audiences at Loyola University in New Orleans and at an Eastern Division Meeting of the American Philosophical Association for their helpful comments and questions.
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Garthoff, J. Decomposing Legal Personhood. J Bus Ethics 154, 967–974 (2019). https://doi.org/10.1007/s10551-018-3888-0
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DOI: https://doi.org/10.1007/s10551-018-3888-0