Wednesday, March 18, 2020

Evening Note for Wednesday, March 18

Thought for the Evening: Scruton on Corporate Persons

In doing the tedious work of going through tweets to find any interesting links and papers, I happened to come across a tweet radically misrepresenting Roger Scruton's position on corporate personality. Since his paper "Corporate Persons" (with John Finnis, Proceedings of the Aristotelian Society, Supplementary Volumes, Vol. 63 (1989), pp. 239-274) is one of his more important non-aesthetic works, I thought I would say a few things about this important argument.

Scruton notes that we have good reason to distinguish between orderly group behavior arising wholly from individual interactions (like the outcome of a market) and orderly group behavior involving some sort of unified deliberation (like the work of a committee). This he takes to be related to the historical concept of the corporate person. "Committees, as a rule, are corporate persons; markets are not, and cannot be" (p. 240). Scruton thinks that corporate personhood is in fact a fundamental concept, one that is necessary for an adequate account of responsibility and action, and even goes so far as to argue that human persons get their own personality in part from corporate persons.

Most of the work done on corporate personality at the time of Scruton's paper (and, indeed, this is still to some extent true) is concerned with the theory of the firm, i.e., the business corporation. Most of this has tended to be concerned with arguing that the corporate personality of the firm is entirely a legal construct corresponding to no moral reality. Scruton doesn't think this is accurate, but he doesn't want to focus on the firm, because firms have two qualities (they exist for a specific purpose and they are constituted by contractual relationships) that could indeed be taken to suggest that they are purely fictions of convenience. This is not, however, true of corporate persons in general, and even most of those who argue against the corporate personality of the firm tend to assume mistakenly that if there are any corporate persons, they could only have these qualities found in the firm. When we look at other examples of corporate persons, we find that firms are not paradigmatic, and it actually makes a great deal of sense in this context to distinguish between those kinds of association that are built contractually and those that are not. A good example of the latter is a church, which cannot be wholly constituted by contractual relationships.

To cut a long story short, we should distinguish among associations between the voluntary, the involuntary and the non-voluntary; between the contractual and the non-contractual, and, within the contractual, between those constituted by a contract among their members, and those which contract with their members; between those with an independent purpose, those with an internal purpose (e.g. the Church), and those with no purpose at all; and, within all those, between the personal and the impersonal. (p. 245)

Corporate persons in general can deliberate, make decisions, act responsibly, have rights and duties, and more. Some are tempted to argue that a corporate person, whether a firm, a church, or a club, cannot be anything other than the members it has at a time; but this does not fit the actual phenomena as we find them, in which it is entirely intelligible for these corporations to remain the same even when gaining and losing members. In some cases, like the church, for instance, remaining the same while gaining new members is entirely the point, while it's in fact possible for a corporate person to continue to exist even though it has no members, as in the case of a vacant crown or see. One argument often put forward for the artificiality of the corporate person is that we have other ways of safeguarding continuity of action and the rights of associations, like the English law of trusts, but Scruton argues that even things like trusts only arise because recognizing personality and features associated with it is natural and reasonable to law -- even if the law does not call something like a trust a 'person', it can only fully develop the concept of a trust in light of personal characteristics. Thus Scruton argues, for instance, that it is absurd that English law was not explicitly recognizing the corporate personality of trade unions, which was contrary to the natural tendency of common law and could only result in injustices for those interacting with trade unions (whether as members or as opponents). It's this, actually, that seems to motivate the tendency to argue for some usable concept of 'legal personality' while simultaneously insisting that this is purely a fictive construct created for legal convenience.

Scruton considers a number of arguments that these legally recognized corporate persons cannot also have have moral responsibility like persons, but rejects them. The fundamental problem with them all is that they fail to recognize that corporate responsibility and individual responsibility are not an exact match; corporate entities can engage in action far beyond the capacity of any individual, and need to be recognized as doing so if justice is to be maintained. We are tempted to attribute the evil deeds done by (say) Nazi or Communist Parties to individuals, like Hitler or Stalin, but while these individuals no doubt bear blame for their participation, it needs to be recognized that the evil done in such cases is a corporate evil far beyond the capacity of any individual. Not even Hitler could do all of the evil that was done by the National Socialist Party; not even Stalin could all the of the evil that was done by the Communist Party. This is why we can say that such corporations themselves ought not to exist; their evil is not wholly attributable to the individuals that make them up.

When people really try to press the difference between natural and corporate persons, three properties in particular come up.

(1) The natural person endures as a unified animal.

(2) The natural person is a rational agent.

(3) The natural person is self-aware.

Scruton accepts that all three of these are points on which one could potentially distinguish natural and corporate persons; but the lack of these does not create any particular problems for the concept of corporate personhood. If any thing, they show that natural personhood and corporate personhood won't conflict -- there is, for instance, no corporate self-awareness that can interfere with individual self-awareness -- and that corporate personhood is the easier concept to grasp. None of the three features is easily given a plausible account; if you want to understand persons, you should be starting with corporate persons rather than natural ones, because they don't have the features that make natural persons so difficult to understand.

One could also argue that the ontological priority of individuals to institutions somehow counts against the real moral personality of corporate persons:

The thesis of the 'ontological priority' of the individual seems to involve two claims: First, if corporations have moral personality, it is only by virtue of the moral personality of their members; secondly, there could be individual persons without corporations, but no corporations without the individuals which act for them. (p. 254)

To this Scruton proposes (a bit more tentatively) his strongest claim: "we are natural persons only in that we are disposed by nature to become persons,and we become persons only by creating personal institutions and the ties of membership which join us to them" (p. 255). Human beings are natural embryonic persons; we must develop ourselves as persons; and we do this development as persons by fellowship with others, without which we could never be anything more than persons-in-embryo, a person-beginning-to-be. But part of how this self-development as a person works is learning to understand how corporate persons work; and this is especially true of corporate persons that are not contractually based, like the household or the church. We as natural persons grow up as persons within the tutelage and framework of the corporate persons of which we are a part, and learn our own duties and rights as persons from the duties and rights of these corporate persons. This is why, in fact, the firm is not the most basic kind of corporate person; it gives the illusion that corporate persons are things that are merely made, but there are corporate persons that contribute to making us.

A corporate person can have a rather robust moral personality even without any legal recognition -- Scruton gives as examples the Catholic Church in the Ukraine, the Polish union Solidarity, and the Jazz Section of the Musicians' Union in Czechoslovakia as three examples in which Communist states had unjustly denied legal personality to something that clearly had corporate personality. Churches are the most obvious examples of corporate entities with robust personalities; other corporate persons may have personality in greater or lesser degree.

And this ties into the reason why Scruton is particularly concerned about the matter at all -- totalitarianism is in great measure a war against corporate personality. This is something that Scruton derives particularly from his experience with the struggle against Communism in Eastern Europe. The greatest threat to dictatorship in Poland was the trade union, Solidarity, precisely because it had robust personal powers far beyond what could be accomplished by any individual. Every totalitarian regime systematically attempts to devour corporate persons, either destroying them entirely or leaving only a puppet-institution that is an expression of the regime itself. The farm must be centrally controlled; the firm must be nationalized so that it expresses only state policy; churches must be subordinate to state actions. Only one corporate person is left standing, the Party or the Regime.

But it is a monstrous person, no longer capable of moral conduct; a person which cannot take responsibility for its actions, and which can confess to its faults only as 'errors' imposed on it by misguided members, and never as its own actions, for which repentance and atonement are due. The moral personality of this all-encompassing Leviathan is impaired: unable to view others as ends in themselves, it lacks such a view of itself. It has set itself outside the moral realm, in a place of pure calculation, blameless only because it denies the possibility of blame. (pp. 263-264)

In contrast to this Frankenstein-monster of a corporate person, at which totalitarian regimes aim, a free society is one in which corporate persons are respected:

The true corporate person is as much bound to respect the autonomy of individuals as they are bound to respect the autonomy of groups. A world of corporate persons is a world of free association: it is the antithesis of collectivism, which imposes a world of conscription, where all association is centrally controlled, and all institutions are things. Collectivism involves a sustained war, not on the individual as such, but on the person, whether individual or corporate. (p. 264)

(Parts of this argument are not exclusive to Scruton. To take an example of someone with a very different politics than Scruton, the socialist Harold Laski also argued, in "The Personality of Associations", that reductionist accounts of corporate personality failed to fit the facts, and that recognition of corporate personality serves as a block against the tendency of the state to absorb everything else.)

The key thing that Scruton proposes as distinguishing institutions that are corporate persons from those that are not is the stable long-term view; that is to say, corporate persons are capable of binding together the living and the dead and the unborn, the past and the future. It is precisely this that makes the corporate person something that can contribute so much to "the ecology of rational agency" (p. 266).

Various Links of Interest

* Scott Edgar, Hermann Cohen, at the SEP

* Edward Feser, Keep It Simple, discusses William Lane Craig on divine simplicity.

* A tutorial on Greek Paleography and another on Latin Paleography, from the Vatican Library.

* Murray Rothbard's satire on Ayn Rand and the Objectivists, Mozart Was a Red.

* George Orwell's intended introduction to Animal Farm.

* Ewoks are the most tactically advanced fighting force in Star Wars.

* Kevin Durst, The Rational Question, criticizes attempts to argue on the basis of cognitive science that human beings are naturally irrational.

Currently Reading

Arkady and Boris Strugatsky, Hard to Be a God
Vladimir Solovyov, The Philosophical Principles of Integral Knowledge
Simon Winchester, The Map that Changed the World