Private Law Theory

ABSTRACT
Theories of corporate personhood present the problem of corporate rights in terms of dichotomies: between public and private; between positive law and morality; and between rights and democracy. How they ascribe corporate rights depends upon how one navigates these bilateral conflicts. Aggregation theory suggests a conclusion that (1) corporations are private and (2) protected by pre-political natural rights that are (3) antithetical to democratic regulation. If one endorses concession theory, one accepts that (1) corporations are public and (2) legitimate expressions of sovereign authority that are (3) antithetical to individual rights. If real entity theory seems appealing, one usually holds that (1) corporations are private entities that (2) supply their own legitimacy that may (3) enforce norms antithetical to both rights or democracy. These are all false choices, each rejected by contemporary notions of constitutional liberal democracy. Contemporary understandings of constitutional liberal democracy do not divide the world into two distinct ontological spheres. What is ‘public’ and what is ‘private’ refer to normative arguments, not reality. Further, constitutional liberal democracy does not outsource its normative authority; it is designed so no one has to choose between transcendental norms and positive law. Finally, constitutional liberal democracy holds that rights and democracy aren’t antithetical, but co-original: democratic citizens are meant to help shape the rights they give themselves.

But this doesn’t mean that theories of personhood have nothing to teach us about important questions of corporate rights: Do they merit religious freedoms? Do they enjoy a right to free speech? To bear arms? Instead, theories of corporate personhood usefully set up constitutional democracy’s problematization of corporate rights discourse. If modified to account for contemporary notions of constitutional liberal democracy, they instead provide a grammar for citizens to use as they advocate for the associational economic freedoms that they give themselves.

Jackson, Katharine, Corporate Personhood’s Three False Choices: Writing a Constitutional Grammar for Corporate Rights (August 11, 2023).