More On Corporations as Persons

On several occasions I have posted on the question of whether corporations are "persons." (See here and here.) More to the point, I asked whether corporations have rights; I concluded that they do here. And I've also commented on the arguments of others who have addressed the same question (here and here), especially as they've considered the place of corporate spending in the American political process.

Now comes a philosopher on the question from a slightly different direction. Roy Clauser was one of the first American-born philosophers to take seriously the neo-Kuyperian insights of Dutchman Herman Dooyeweerd. (FWIW, two of my three undergrad philosophy profs had studied under Dooyeweerd. But they were Dutch.)

You can find Clauser's short post here. Clauser observes that the Western Christian tradition of natural law derived rights from justice but that with the Enlightenment the order was reversed: rights are now understood to generate justice. Indeed, I think he's right about the historical order of events (see my symposium piece, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (abstract here)).

So what, you ask? According to Clauser, if, on the Enlightenment account "only individuals have rights, corporations would have no rights and lack legal standing before the courts." Since such a result seemed absurd to most folks, especially lawyers, courts were forced to invent the legal fiction "that corporations are individual persons for legal purposes." Departing from the story lawyers tell themselves, Clauser characterizes such a "legal fiction" as a lie, a lie which derailed rights-based analysis ever after. In other words, natural justice would hold that various forms of religious, social, and economic communities (including corporations) have rights even though they're not "individuals." However, because nineteenth century folks were unable to countenance the logical result of their Enlightenment presuppositions--that corporations should have no rights, and invented a lie so that they would--we're left with an paradoxical position that on our Founding's account corporations shouldn't have rights (but they do) while other associations generally do not have rights (unless they adopt the corporate form) even though they should.

Clauser concludes by arguing that it was the Supreme Court's confusion of the legal fiction of corporate personhood with the truths of natural justice that lead to the decision in Citizens United. Except on the misguided Enlightenment-generated fiction that corporations are individuals, there would be no logical requirement that corporations have the right to contribute to federal and state election campaigns. On a natural law account, corporations (and unions) would have rights but only those appropriate to their position in the larger political community. For my thoughts see my lengthy post "A Real Aristotelian Looks at Corporations" here.

There's a lot to ponder but I think Clauser is generally right. I don't know enough about the history of the metaphysical understanding of the corporation in American law to evaluate that part of his argument but like other folks I've considered, there certainly is no constitutional requirement to characterize corporations as persons with all the rights of individuals.