Legal personhood and the firm: avoiding anthropomorphism and equivocation

Abstract

Abstract:From the legal point of view, "person" is not coextensive with "human being." Nor is it synonymous with "rational being" or "responsible subject." Much of the confusion surrounding the issue of the firm's legal personality is due to the tendency to address the matter with only these, all too often conflated, definitions of personhood in mind. On the contrary, when the term "person" is defined in line with its original meaning as "mask" worn in the legal drama, it is easy to see that it is only the capacity to attract legal relations that defines the legal person. This definition, that avoids the undesirable emotional associations and equivocations that often plague the debate, is important for a legally-grounded view of the firm.

Ernst Freund as Precursor of the Rational Study of Corporate Law

“…As Freund (1897: 19) explained, in any association based on a 'combination of resources', the purpose of which was to 'bring returns to each party far in excess of what he would procure by the separate and independent employment of his own means', a key 16 Legal persons, wrote Freund (1897: 81), were simply 'distinctive parties of legal relations'. An advantage of this view of legal personhood, which is independent of the flesh-and-blood human being and the issue of volition, is that it avoids anthropomorphism and equivocation (Gindis, 2016).…”

“…By contrast, legal entity status features prominently in more recent scholarship on the firm (Ayotte and Hansmann, 2015;Blair, 2012;Blair and Stout, 1999;Deakin et al, 2017;Deakin, forthcoming;Gindis, 2016;Hansmann and Kraakman, 2000a;Hodgson, 2002;Hansmann et al, 2006;Iacobucci and 2 D A V I D G I N D I S Triantis, 2007;Kornhauser and MacLeod, 2013;Orts, 2013;Spulber, 2009;Triantis, 2012;Van den Steen, 2010). Much of this work revolves around two key claims: first, legal entity status fulfils important economic functions overlooked in previous research; and second, legal entity status requires what Henry Hansmann and Reinier Kraakman (2000a) call 'organizational law'.…”

Rethinking Corporate Agency in Business, Philosophy, and Law

“…Freund 1897;Gierke 1900;Maitland 1905;Deiser 1909;Machen 1911;Laski 1916), and are now making a comeback (e.g. Pollman 2011;Blair 2013;Coleman 2014;Greenfield 2015;Piety 2015;Gindis 2016;Robinson 2016;Greenwood 2017;Kurki and Pietrzykowski 2017) against a backdrop of widespread calls to restrict constitutional rights to human beings (Ripken 2011 were to live in a future broken by climate change and material scarcity, or in a future populated by digital beings that have replaced flesh-and-blood humans. In such a broken or digital future, which no one can be certain will not happen, Mulgan shows that many of the assumptions of contemporary moral theory would no longer hold.…”

Ernst Freund as precursor of the rational study of corporate law

“…By contrast, legal entity status features prominently in more recent scholarship on the firm (Ayotte and Hansmann, 2015; Blair, 2012; Blair and Stout, 1999; Deakin et al , 2017; Deakin, forthcoming; Gindis, 2016; Hansmann and Kraakman, 2000a; Hodgson, 2002; Hansmann et al , 2006; Iacobucci and Triantis, 2007; Kornhauser and MacLeod, 2013; Orts, 2013; Spulber, 2009; Triantis, 2012; Van den Steen, 2010). Much of this work revolves around two key claims: first, legal entity status fulfils important economic functions overlooked in previous research; and second, legal entity status requires what Henry Hansmann and Reinier Kraakman (2000a) call ‘organizational law’ 2 .…”