Re-personing ethics, de-personing the corporation

Re-personing ethics, de-personing the corporation September 26, 2009

In his fantastic book Who Count as Persons?: Human Identity and the Ethics of Killing (Washington, D.C.: Georgetown University Press, 2001), Jesuit ethicist John Kavanaugh argues that ethics has become “de-personed” (20). Narrative theology and virtue ethics, for example, “have been marked, until recently, by a strange absence of the subject of ethics, the one who does ethics: the person” (21). Although these approaches to ethics have challenged modern “grand claims about some timeless and spaceless ‘autonomous man,’” unmasking them as “fraudulent strategies that justify power and self-interest,” Kavanaugh insists that “not every possible model of the human person is a pretense,” and that an essential, but forgotten, task of ethics is to “investigate just what kind of being the human being is and to examine what human beings uniquely introduce to the world” in order to ground ethics in the human person (22-23).

The majority of Kavanaugh’s book goes on to make a radically personalist argument against killing human persons. The “cultural relativism” of our times, which often leads to the denial of the dignity of human persons, can only be challenged “if there is a foundation for ethics other than the heritage one finds oneself lodged in” (106). That foundation for ethics is the human person itself. “We cannot ‘do’ ethics or ‘be’ ethical,” he says, “if at the same time we negate personal existence” (107). After establishing the human person as the ground of all ethics, he formulates the primary law of ethics. Said positively, that primary law is “Affirm the reality of personal existence,” i.e. love persons and love personal existence. Said negatively, it is “Do not treat persons as non-persons. Do not reduce persons to the status of an object” (108). He goes on:

Because the very impulse to be ethical affirms the personal reality from which ethics springs — because the very placement of an ethical act is, of its essence, a ‘yes’ to personal dignity—one cannot be faithful to the moral universe in doing any act that in itself negates personhood in oneself or another. Fidelity to human personhood, the affirmation of the intrinsic value of persons and adherence to the truth of personal moral dignity, requires that we never reduce a human person to the condition of being a nonperson, that we not negate the personhood of ourselves and others, that we not treat a person as a mere thing or object. . . . To be willing to kill a human person is to be willing to kill the foundation of ethics itself. It is to disengage oneself from the moral universe (119).

As Catholics conscious, we hope, of the culture of violent death in which we live in the united states of america, we should be able to identify numerous examples of the depersonalization that Kavanaugh describes. What is more difficult to discern are the ways this confusion about the human person leads us to “personalize” things that are not persons. As Kavanaugh wrote in a previous book, in a commodity-driven society (a consumer, i.e. capitalist society) “[p]ersons relate to things as if they were persons; they relate to persons — including themselves — as if they were things” (Following Christ in a Consumer Society: The Spirituality of Cultural Resistance, Revised ed. [Maryknoll, NY: Orbis Books, 1991), 58).

We can probably identify this tendency in our own experience, regarding objects as having a dignity that belongs to persons alone. It is all too fitting, then, that the modern corporation, one of the central engines that generates this confusion of personhood, turning it backwards, is itself regarded as a person by corporate law. A brief comment by a single judge in the 1886 case of Santa Clara County v. Southern Pacific Railroad set the precedent for the legal doctrine of corporate personhood. In that case u.s. supreme court justice Morrison Remick Waite stated:

The court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

As another John Cavanaugh (with a ‘C’) and co-author Jerry Mander write, “Few judicial pronouncements have dealt democracy and human rights a more bitter blow. This one established a legal doctrine of corporate personhood that has been used ever since, by corporate lawyers in country after country, to place corporations ever further beyond public accountability for their actions” (Alternatives to Economic Globalization: A Better World is Possible: A Report of the International Forum on Globalization, Second ed. [San Francisco: Berrett-Koehler, 2004], 288). In theological language, we might say that just as in Christian theology human persons are brought into being by a personal creator God in whose image we are made, within the consumer-capitalist society the objects/products that we treat as persons are brought into being by an entity that is also regarded, falsely, as personal.

Few americans, and few global citizens, are aware of this part of the legal definition of the corporation. The popular 2004 documentary The Corporation brought some awareness of the issue to North American audiences, asking the question: If the corporation is to be regarded as a person, what kind of person is it? With the help of Noam Chomsky, Naomi Klein, Milton Friedman, Howard Zinn, Vandana Shiva and Michael Moore, the filmmakers argue that with its anti-social personality of pure self-interest, “the institutional embodiment of laissez-faire capitalism fully meets the diagnostic criteria of a ‘psychopath'” according to the “criteria of the World Health Organization and the standard diagnostic tool of psychiatrists and psychologists.”

The position that the definition of the corporation-as-person can and should be reversed could be dismissed as the radical fantasies of the world’s Chomskys, Kleins, and Moores. But a comment last week by supreme court justice Sonia Sotomayor in a campaign-finance case shows that such ideas may no longer be dismissible, and may be seeping into the mainstream. Sotomayor stated that judges “created corporations as persons, gave birth to corporations as persons. There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Allison Kilkenny is right to note that it may be premature to hope for any radical changes in corporate law based on one comment, but nevertheless it is remarkable to hear this kind of view expressed. I am not aware of similar statements from within the ranks of the Powers that directly challenge legal definitions that have played such a central role in protecting corporate hegemony for over a century. (I’m sure our readers will correct me if I’m wrong.)

Catholics, of course, have a wealth of resources as well as centuries of deep thought and committed praxis around the issue of personhood. There are perhaps few traditions that can match the kind of reverent thoughtfulness that Catholics have brought to the question. We are known as a community for being outspoken and passionate when it comes to resisting sins against the dignity of the human person (regrettably, our attention to some human persons is not as strong as it is for others). “Re-personing” human beings who continue to be “de-personed” in this culture of violent death will always be a central vocation of Catholic Christians. A related but equally important task is that Catholics think, speak, and act out of our rich tradition of reflection on personhood by participating in efforts to “de-person” abstract entities that are clearly not persons. Such definitions are blasphemous distortions of what it means to be made in the image and likeness of the three-personed God.

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  • Ryan K

    Perhaps I’m displaying some of the ignorance mentioned above, but if corporations are legally persons, why are they not criminally charged with crimes when they break the law? If I murdered someone (or even if I dumped used motor oil down a sewer), I would be charged with a criminal offense.

    It seems to me that the “personality” of corporations has undergone a dramatic shift from the granting of personhood in the 19th century until today. I think it would be fair to say that at one time, most corporations understood their purpose as providing a good or service, and profit was a benefit to the owner for providing that good or service. Now most corporations understand profit as their purpose, and the provision of a good or service as the means to generate that profit. It is this shift that has resulted in the “psychopathic personality” we see in corporations today.

    If profit is the only corporate purpose, the focus of a corporation changes from meeting a human need (whether that need is food, transportation, shelter or information) with profit as a reward for meeting that need, to exploiting that human need. However, I’m not sure how we could effect a legal solution to this problem. Legally, corporations are required to consider profit as their only motivation and to do otherwise opens corporate officers to legal action from their own shareholders. Ironic that when corporations break other laws (such as murder) corporate officers are not generally subject to criminal legal sanctions. I’m not sure how rescinding the personhood of corporations would help.

  • dpt

    Adopt a new lifestyle…values: “the primacy of being over having, of person over things.”
    Gospel of Life, Pope John Paul II

  • Blackadder

    Actually corporate personhood long predates Santa Clara County v. Southern Pacific Railroad, with dealt only with the subsidiary question of whether they were persons under the 14th amendment. I would also note that the argument against corporate personhood (or against applying Constitutional protections to corporations) would apply not only to entities like Microsoft and Wal-Mart, but also to non-profit groups like Amnesty International, to labor unions, etc. In other words, hardly anyone would favor the idea if they grasped its true implications.

    For anyone who’s interested, my review of the film The Corporation can be read here.

  • Ryan – As far as why they are not charged, I think it’s partially due to a double standard. Corporations want to invoke the image of “personhood” for the purpose of protecting their “rights” but they avoid such techniques when it comes to their responsibilities. Human persons, of course, have both rights and responsibilities.

    I agree that reversing the idea of corporate personhood is not the solution, but only part of the problem. In their book cited above, Cavanaugh and Mander recommend several types of action to curb the power of corporations, ranging from more reformist to more radical: promoting corporate responsibility through boycotts and consciousness-raising, legislation of standards for corporate accountability, expulsion of abusive corporations, revoking corporate charters, eliminating limited liability and corporate personhood, dismantling large corporations and conglomerates, antitrust laws, and dismantling global trade organizations, replacing them with new ones that promote economic democracy.

    Blackadder – I’ll have to take your word for it that this aspect of corporate law has analogous applications to Amnesty International and labor unions. Assuming it does, it seems obvious that the kinds of “protections” that AI and unions would be interested in are far far different than those that corporations are interested in. It is unclear to me how revoking corporate personhood would affect such groups or why whatever “protection” they seek would have to be enshrined in that way.

  • Blackadder

    It is unclear to me how revoking corporate personhood would affect such groups or why whatever “protection” they seek would have to be enshrined in that way.

    Because they are juridical persons.

    Corporate personhood originally was (and remains) a means of consumer and worker protection. Since you can only sue a (legal) person, getting rid of personhood would mean that people who were injured by corporations would have no remedy (I mean, you might be able to sue the underlying or whoever who actually physically harmed you, but chances are his pockets aren’t that deep).

    • But again, I don’t see what this has to do with Amnesty International.

  • Blackadder


    Amnesty International *is* a corporation (at least Amnesty International USA is, I don’t know how they are organized in other countries). So when you’re talking about getting rid of personhood for corporations, you’re talking about getting rid of it for AIUSA.

    • You’ll hear no complaints from me on that. Even if AI is technically categorized as a “corporation,” its purpose is not the generation of profit.

  • Blackadder

    So you don’t have a problem with AIUSA being denied First Amendment rights? Or people lacking the ability to sue a corporation when they are harmed by it?

  • BA – Not recognizing AIUSA as a “person” would not necessarily mean denying First Amendment rights. Similarly, removing the “personhood” of corporations would not necessarily mean corporations could not be held accountable for what they do. In reality corporate personhood does not seem to result in corporations being held accountable more often.

    Basically you seem to miss that just as corporate personhood is not set in stone, whatever results from the reversal of that definition that you might imagine would not be set in stone and could be dealt with in other ways.

  • David Raber

    Ryan writes:

    “I think it would be fair to say that at one time, most corporations understood their purpose as providing a good or service, and profit was a benefit to the owner for providing that good or service.”

    I’m afraid that capitalism has always been about making a buck, period–or at any rate this is the overwhelming tendency. There will always be those who care about their work and take great pleasure and pride in providing an excellent product or service, but these people are working not in harmony with but against the system, which remorselessly promotes the lowest possibly quality at the highest possible price.