If a corporation is a person, can I marry one?
Seriously? Doesn’t this question destroy the illegitimate legal fiction that a corporation is a “person” under any definition? First, to qualify as a person an entity must first be alive. Second, that entity must have a foreseeable lifespan, that is, it must die. That lifespan may vary widely between living entities, but it cannot go on indefinitely. Third, although I am not religious, to be alive an entity must have a soul (21 Grams) or some independent life energy(Vitalism). Fourth, another key element to life is the ability to reproduce. Although there is some argument that corporations can spawn other corporations. This spawn arrives via no mechanism that we would recognize as natural reproduction. Imagine the right to life argument regarding rules of incorporation.
Originally corporations were formed for a limited time and limited purpose. Overtime the legal precedent slipped and now the requirement to define a time and purpose is all but gone. Back then, one could bring a suit against a corporation for acting outside of its original purpose and that purpose had to be very strict. For instance, a corporation could form to build a bridge, but once that bridge was complete, the same corporation could not then also build the road to the bridge, or even another bridge.
In contrast, I see the corporation as the embodiment of our fears regarding man interfering in the natural process. Throughout history, we have created myths to warn us away from attempting to create life. In Jewish myth, there was the Golem created from mud to do the bidding of and protect its creator, and eventually it turned on its creator. Likewise, Shelly’s Frankenstein monster and Capek’s Robot ultimately turn on their creators and natural life.
Finally, I side with the Buddha and Dali Lama in that the critical ingredient that makes a human being a person is compassion. Compassion is the ability to truly empathize with others and understand how one’s action will affect others and the world. Corporations lack the ability to feel and therefore lack empathy and compassion.
This lack of empathy is a direct result of how a corporation is structured. Corporations are naturally sociopathic, existing to consume and grow without regard to their impact on the world around them. The primary beneficiary of a corporation’s existence, the shareholder, is intentionally separated from the risks of the enterprise. That is, the shareholder liability is limited to the amount of the investment so the shareholder does not share in the liability for any corporate malfeasance. Even the corporate officers are insulated from most liability. An injured party will have a very difficult time recovering from either the corporate officers or the shareholders unless there is direct evidence of the personal intent to cause the harm. If a corporation simply fails, the remaining shareholders may lose whatever they invested, but the corporate officers simply walk away with whatever golden parachute they created for themselves.
Additionally, the only motivation that the shareholders have is profit. There is no return on investment for empathy and therefore no profit motive. The shareholder is more concerned with the short term gain through dividends and stock valuation than a long term return on investment, or in how the corporation can benefit society as a whole.
My suggestions? First, I believe that Asimov developed a fix to the creation conundrum through the three laws of Robotics
- A [corporation] may not harm humanity, or, by inaction, allow humanity to come to harm[1].
- A [corporation] may not injure a human being or, through inaction, allow a human being to come to harm.
- A [corporation] must obey the orders given to it by human beings, except where such orders would conflict with the First Law.
- A [corporation] must protect its own existence as long as such protection does not conflict with the First or Second Laws.
Next, we need to return to a more strict approach to rules of incorporation by clearly defining the purpose and duration of the corporate entity and then enforcing the definition. By defining the purpose, one can then define the benefit to humanity. Likewise, by defining the duration, there is less of a chance that the corporation will stray from its original purpose.
If implemented, these solutions would not inhibit the original purpose for creating a corporation. That is, to insulate the risk taker from the risk maker thereby encouraging investment by the risk maker without the risk of unlimited liability should the enterprise fail. This type of construction would still encourage investment and innovation, but would prevent the “to big to fail” quandary of our recent economic crash.
[1] Trevize frowned. "How do you decide what is injurious, or not injurious, to humanity as a whole?"
"Precisely, sir," said Daneel. "In theory, the Zeroth Law was the answer to our problems. In practice, we could never decide. A human being is a concrete object. Injury to a person can be estimated and judged. Humanity is an abstraction."
—Foundation and Earth
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