Do corporations have rights? The notion is at once attractive and disturbing. It is perhaps most attractive to lawyers, who are led by the metaphor of corporate personality into assuming that corporations possess the same rights and duties as natural persons. This assumption is given credence by the array of human activities in which corporations now represent the world's dominant force. Since "more and more it is corporations that are effectively the actors in our society",1 why should not their action be accorded the same protection that human action is?
On the other hand, the notion of corporate rights is likely to disturb those who decry the enormous economic, social and political power that corporations wield in today's world. To such people, "corporations, who, under the cover of stockholder and executive anonymity, exploit, deprive, dehumanize and kill in search of profit,"2 are more than capable of protecting their own interests without being dealt the trump card of rights as well.
In this paper I will argue that corporations do have rights, just as human beings do, and that these ought to be (as, to some extent, they are) protected by the law. I make this argument not as an apologist for corporate hegemony, but in the belief that "[c]orporations have long since become, for better or for worse, the most efficient 'private' forces to do both widespread good and widespread harm."3 To refuse these important actors the protection of rights is to deny the moral value of collective human autonomy as it is usually and most effectively expressed.
The theory of corporate rights developed in this paper fits within the broader political framework of liberalism.4 Liberalism is such a flexible and all-inclusive ideology that it is often necessary to sub-categorise it. For present purposes a distinction must be drawn between deontological and teleological liberalism. Deontology literally means the study of duty. Deontological liberals are those who believe that human beings have duties and possess rights independently of their conception of the "good life". They also believe that the state ought to restrict itself to the enforcement of these basic pre-legal rights and duties, and should otherwise leave citizens to pursue the good life (or "the good") as they see fit.
Teleology means the study of phenomena by the purposes they serve, rather than their causes. Teleological liberals believe that there are no pre-legal rights or duties, but that these are posited to serve particular social purposes. Thus, they are not averse to positing a specific normative conception of the good. The most widely-accepted teleological theory of the good is utilitarianism, and a recent variation is wealth maximisation.5
The liberalism of this paper is essentially deontological. However it deviates from orthodox deontological liberalism in one notable respect. This is that deontological liberalism is premised on the assumption that individual human beings are the only fundamental units of value, and that all other goods can only be means to human ends. The classic exposition of this notion is Immanuel Kant's:
Now I say that man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will: he must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end.6
This assumption has been criticised by those who argue that other fundamental units of value exist as well, such as animals7 and communities of human beings.8 I will criticise it in this paper also, by proposing that corporations can be fundamental units of value, and that they should be endowed with rights in order to protect their capacity for autonomous action.
The deontological perspective of rights taken in this paper departs from the dominant liberal ideology in Australia, which is utilitarian.9 This renders it vulnerable to many of the same criticisms which have been levelled at deontological theories of individual human rights.10 Rather than entering this debate here, I am content to concede that the legal positivist who denies the existence of pre-legal rights will not be convinced of the contrary position by this paper.
However even if this positivist is correct in denying that the rights for which I contend exist in any transcendent sense, this need not lessen the utility of rights discourse. Even if rights are no more than expressions of values, there are certain shared values which are central to social life in Australia:
Moral entities - values or standards or whatever they may be - belong within human thinking and practice: they are either explicitly or implicitly posited, adopted or laid down. And the positing of rights is no more obscure or questionable than the positing of goals or obligations.11
Moreover, as a signatory to the International Covenant on Civil and Political Rights which recites "that these rights derive from the inherent dignity of the human person," Australia has affirmed an explicitly deontological conception of human rights in the international arena. It is submitted, then, that a deontological theory of corporate rights can at least be taken seriously in Australia, whether or not its consequences prevail.
Chapter 1 of the present paper is entitled "What are Corporations?" Its purpose is to develop a conception of the corporation as a rights-bearing entity. This is done by synthesising the realist theory of corporate personality with modern organisation theory. The resulting conception of the corporation as a social entity forms the basis of the theory of corporate rights developed in chapter 3.
Chapter 2 poses the question, "What are Rights?" The word "rights" is used in many different senses for many different purposes. For legal purposes, a fundamental distinction must be drawn between moral rights and legal rights. In essence, moral rights are those rights which a person should have, whereas legal rights are those which the person does have. Thus the existence of moral rights is a subjective and political question, whereas the existence of legal rights is an objective question of law.12 This chapter deals primarily with moral rights, by examining their origins, who can claim them, what their content might be and how they should be safeguarded.
Chapter 3, "Should Corporations Have Rights?", discusses whether corporations possess moral rights. Before an affirmative answer can be given, two matters must be shown: that corporations have a moral claim to autonomy of sufficient weight to warrant its protection by rights, and that a corporation's autonomy cannot be sufficiently protected through the rights of its individual members. Chapter 3 argues for both of these propositions, and concludes by suggesting some particular rights that corporations should have.
Chapter 4, "Do Corporations Have Rights Overseas?", briefly surveys which of these rights have the force of law in the United States, the United Kingdom, Canada and New Zealand. Chapter 5 continues by asking, "Do Corporations Have Rights in Australia?" It reveals that compared to corporations in the countries considered in chapter 4, Australian corporations possess few legal rights adapted to protect their autonomy. Most of those which they do have are found in the common law, although some are also enshrined in statute and in the Constitution.
The avenues open for the extension of corporations' rights are examined in the Conclusion to the paper. If corporations do indeed possess moral rights, then it is the duty of the state to safeguard them, either through constitutional alteration, judicial activism or statutory law reform. The reader who doubts that there is much prospect of such law reform being undertaken should consider the position in New Zealand. Only four years ago, that country's Parliament enacted a statutory Bill of Rights which explicitly provided that the rights set out therein should apply, where possible, to corporate as well as natural persons.13 If this paper can demonstrate the need for similar law reform in Australia, it will have achieved its aim.
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