Incorporating Embodiment

Abstract

The history of the corporate form shows that it is a problematic construct, which allows for the simultaneous use of multiple referents. The necessary use of these multiple referents, particularly in the construction of the economic 'agent' with contractual agency, provides the background for the necessary ontological understanding of all economic 'agents' and legal 'subjects' as 'homo economicus'. The continued use of the corporate form, therefore, leads to the necessary evacuation of ontological content from the category of the legal 'subject' and the economic 'agent'. I will show how this structural evacuation of embodied content relates to and affects the status of embodied human beings in these domains. 'Corporations have a life, and even citizenship, of their own, with attendant rights and powers. Corporations are "persons" within the meaning of the United States Federal Constitution and Bill of Rights' (Monks and Minow, 2009, p. 14). As Monks and Minow show, it has become commonplace to think and speak of corporations as if they were legal 'persons' that can be endowed with such properties as 'citizenship' and even 'life'. Cautious observers might warn that corporations are not Working Paper Version 'Incorporating Embodiment' 13-10-2015 The Modern Corporation Project www.themoderncorporation.com 6.2.1 A short history of the legal construct The notion that the corporation presents a legal 'subject' or 'person' is not self-evident. By the end of the 19th century corporate charters were still conditional and limited liability was a feature that was only sparingly attributed to corporations (Handlin and Handlin, 1945; McLean, 2004; Avi-Yonah and Sivan, 2007; Djelic, 2013). Under these conditions corporations were treated as Working Paper Version 'Incorporating Embodiment' 13-10-2015 The Modern Corporation Project www.themoderncorporation.com partnerships (Ireland, 1999; Perrow, 2002), that is as aggregations of individuals, not as singular 'subjects' or 'persons' in terms of how they related to other legal 'subjects' (Dewey, 1926). By the middle of the 19th century, an increasing separation between the shareholders and 'the company' necessitated the creation of a formal separate legal entity, which would hold ownership over corporate assets and liabilities in its own name, rather than in the name of the owners or the managers. By creating 'a body, which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted' (Dicey, 1894-1895 in Maitland, 2003, p. 63) the corporate form provided a construct next to the aggregation of individuals. The concrete status of this reified separate legal entity with attributions of ownership would remain unclear in

Responsibility and the Modern Corporation

“…35 It seems fair to argue that the acknowledgement of differences in the status of 29 Ireland and Pillay (2010), Morgan (2008), Robé (1997). 30 Veldman (2016b). 31 Ireland and Pillay (2010), p. 15.…”