In the wake of the Hobby Lobby decisions, there have been renewed discussions of corporate personhood. The argument is relatively simple: the 19th century Supreme Court made a mistake when it created the legal fiction that corporations are persons. I don’t want to get into that argument here. Instead, I want to make a slightly different argument: all persons are fictions.
The debate over corporate personhood – at least the semi-popular versions of it floating around in op-ed pieces and blog posts – takes for granted the distinction between “natural persons” and “legal persons.” But individuals (usually equated with “natural persons” in debates about corporate personhood) are simultaneously constructed as natural persons and legal persons. And both of these constructions are a kind of useful fiction, just with two different narratives.*
The argument is easier to make for legal fictions. Yes, corporations are only persons because of grants by the state that declare them to be so. Before, say, the 19th century, there were very few such corporate actors. In the US, the 19th century saw an explosion of incorporations as states eased laws restricting corporations to limited purposes or limited lifespans, eventually creating the general purpose incorporation statutes we all know and love.**
But individuals are legal fictions as well. We can see this when we see cases of seemingly natural persons denied various rights, or when we look at the seemingly arbitrary lines dividing persons from non-persons or not-quite-persons. Useful liminal cases are children (who are almost people, potential people, or partial people, given some rights but not others), those deemed mentally incompetent, and perhaps stateless individuals (following Arendt and others who theorize the problematic legal status of the stateless). So, the point here is that individuals are not automatically legal persons, and that being a legal person is not quite so binary as the conventional discussion presumes (and that’s just in modern legal systems, not even opening the can of worms of historical legal systems where most natural persons were decidedly not rights-bearing legal persons).
The argument that natural personhood is a construction is a bit less intuitive but, I think, equally compelling. On what grounds do we assume that a particular material formation is a natural person? Is based on some unity of the actual matter composing that person? Well, no, the cells and atoms that make up a person change over time. What about based on some kind of informational identity, like genetic code? The argument, an especially popular one in the past few decades, equates DNA to essence. But this argument fails as well. Just consider identical twins on the one hand (same DNA, different persons) or chimerism on the other (one individual, multiple codes, cf. Martin 2007). Even outside of these seemingly special cases, we know that DNA changes over time within the life of an individual, and also that the expression of genes varies with all sorts of environmental factors. And what do we do with the “microbiome”? Having mapped the human genome, we realized we had still only a small part of the picture. The map between genetics and even a person’s body is weak, let alone the map between genetics and some kind of natural identity. And all of this is without even getting into the issue of when an embryo becomes a person.
But if we can’t even cleanly map one set of material objects-in-the-world in a deterministic way onto natural persons, how do we know what constitutes a natural person at all? The point is not that natural persons don’t exist, just that we have to do all sorts of cultural and technical work to make them exist – albeit of a different kind than we do for legal persons.
After that little detour, I suppose I should bring things back to the corporate personhood debate. I have only an inkling of what the connection might be. I think I’m just dissatisfied with public understanding of the vast space of the possible. Recognizing that, perhaps we will take the current sanctification of corporate personhood even less seriously than we already do. After all, corporations are recognized as persons because they are composed of natural persons, owned by natural persons (obligatory Romney link). But what it means to be a natural person isn’t even natural (in the sense of fixed, eternal, unchangeable, ahistorical).
* And as with all social construction-style arguments, remember that by constructed we don’t mean fake or the opposite of real, but rather contingent, potentially malleable, “could have been different”. That is, we are looking at the conditions under which something is real, why it is the reality that it is and not something else. For more on this, see Hacking 1999.
** There’s a relatively large literature on the history of the corporate form in business history, political science, and economic sociology. Three semi-random starting points would be Chandler’s Visible Hand, Ciepley 2013, Kaufman 2008.
*** I wonder if this taken-for-grantedness of natural personhood shows up in interesting places as an assumption of stability within individuals that might not actually exist. For example, economics has a long and powerful tendency to assume basically stable preferences within individuals. Why? Well, because we assume that biological individuals are basically the same from one moment to the next, and so it wouldn’t make sense for their preferences to be a discontinous jumble. And yet, observationally, people have wacky, seemingly contradictory preferences in very short spans of time, as documented nicely by game theorist Thomas Schelling (2004).