Legally Granting Entitivity, or Granting Personhood to Non-Persons

In 1886, the Supreme Court granted corporations personhood, or at least the same rights as were granted to any living person, and justified the decision based on the Fourteenth Amendment to the Constitution. The 1886 legal transformation (or imbuement) now, in retrospect, appears to figure prominently in theoretical models of organizations, corporations, and states, especially, the idea that these entities are straightforward actors, unsurprisingly, able to act. Most obviously this fits into the work of Alexander Wendt who famous (and controversially) claimed “states are people too” in his famous article in Review of International Studies, “The state as person in international theory”.

Constitution

For some background on corporations and corporate entitivity, I turn to David Korten’s (1995:185-6) well-known book The Post-Corporate World: Life After Capitalism, wherein we learn that:

In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court’s taking it upon itself to rewrite the Constitution.

Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of argument in the case of Santa Clara County v. Southern Pacific Railroad Company that

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

The court reporter duly entered into the summary record of the Court’s findings that

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery – a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts.

Shifting gears back to thinking about states, the language that is used sometimes in International Relations, political sociology, and political science is “entitivity”. This is a description of legal reality, meaning that a corporation (which is really just an idea or organizational form) can be treated as an actor, entity, or, in this case, person. This is also more than a description because it has been so profoundly reified over the last decades, by which I mean to say that the we assume states are in fact the free-standing actors that we assume-them-into-being and this happens to such a great extent that statements like “The US just sent a strong message to China” can actually be comprehended by average people. So reified is the state actor idea during the neo-statist turn in sociology, history, and political science during the 1980s/90s that one got the feeling that you could have actually snapped a picture of the state.

Posable_figure

Regarding the action or behavior of “entities” such as states or corporations, there is a rule amongst neo institutional scholars, especially in organizational analysis, to avoid saying, for example, that “Apple just released the iPhone 4S” because the corporation actually did not do that and instead this comment is a shorthand for going to the trouble to say that Apple executives, based on the work of myriad employees, decided to release their product into a particular set of markets. This also explains the massive emphasis on leadership and management in organizational studies because the behavior of leadership is often mistaken for how an organization behaves or how an institution – like a university – thinks (thank you, Mary Douglas).

In this way, group-level behavior is sometimes subsumed in the emphasis on leaders (i.e., the group is spoken for by the management that leads them); other times, group-level and leader behavior (and whatever infinite nuance must go into all that) get subsumed under the seemingly single behavior/activity of the overarching entity (i.e., the entity appears to act/behave/speak for both group and its leadership). In all, there is no easy way to sort out these sorts of issues, at least, to my knowledge, as it is mainly a matter of perspective and whatever the analytical starting point is. Some might say, however, that this whole debate can be explained away because it is merely a case of category error; for example, the student taking a tour of campus during orientation is shown around The Pennsylvania State University, and, at the very end of the tour, says “I’ve seen the buildings, and the faculty and the students, but where is the University?”. The obvious and logical conclusion, therefore, must be that states, organizations, and corporations are simply operating at a different (read: hierarchically superior) level of organization from individual human beings. That might sound reasonable for sociologists from the 1950s (or even some of them now); however, while hierarchy and terms like “power” are useful for understanding such relationships, the two terms are also a shortcut for doing the hard work of describing what happens when, for example, a state appears to act in some fashion. Put another way, and one that I subscribe to: if we assume no hierarchies, and assume whatever appear to be hierarchical power relations are actually people on the ground in various network formations operating on a flat plane of existence, then we have another view (one more akin to Deleuze and Guattari’s view of the world as composed of A Thousand Plateaus).

1000platos-intro-16

A final option exists, and that is to treat this entire issue not as a legal reality or scholarly conception, and instead suggest that this is a perception issue, which has the potential to satisfy both camps. This is an argument under development, so forgive its crudeness. Consider social psychologist Jennifer L Welbourne’s very traditional paper “The Impact of Perceived Entitivity on Inconsistency Resolution for Groups and Individuals” published in the conservative psychology journal, Journal of Experimental Social Psychology. The thrust of her argument is nicely encapsulated in the final line of her abstract:

Abstract

Previous research has indicated that differences in perceived target entitivity influence the degree to which information about a group or individual is processed online. The current set of studies examines whether perceptions of entitivity are also associated with differences in the content of impressions formed of groups and individuals. Specifically, if perceptions of high entitivity motivate perceivers to seek coherence in a target, impressions of individual (high-entitivity) targets should be characterized by greater resolution of behavioral inconsistencies than impressions of group (low-entitivity) targets. Study 1 provided evidence for this hypothesis by demonstrating that perceivers were more likely to apply restrictive diagnosticity schemas to resolve inconsistent behaviors in a predicted direction when the target was an individual than when the target was a group. Two additional studies were conducted to determine the specific aspect of target entitivity that produced these results: perceiver expectations about the similarity and consistency of a target’s behaviors (Study 2) and perceiver expectations about the unity of a target’s intentions and goals (Study 3) were manipulated and the resulting impressions were examined. The results suggest that perceptions of unity in a target’s intentions and goals underlie the assumptions of entitivity and the obtained impression effects.

All we need to do is to uncover a set of cases that allow us to empirically observe instances where the perceived unity of a state’s intentions and goals fuel the underlying assumption that indeed the state is an entity, which produce the impression effects. Now, if we don’t assume states are entities in advance, which we must if we are going to chalk-up their entitivity to impression effects, then we must assume that states are, to some extent, made “anew” each time we invoke them and fortified by routine invocation. So, who does this sort of performative invocation? Finding a few cases like that would make a fine book…

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About Nicholas

Associate Professor of Sociology, Environmental Studies, and Science and Technology Studies at Penn State, Nicholas mainly writes about understanding the scientific study of states and, thus, it is namely about state theory. Given his training in sociology and STS, he takes a decidedly STS-oriented approach to state theory and issues of governance.

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