The use of the nomer ‘corporate’ is hardly an issue in contemporary scholarship on corporate governance. I will argue that this nomer is important for two main reasons. First, the corporate form distinguishes itself from any other form of business representation. In this sense, it is important to know exactly how this form is different to understand how conceptions of ‘corporate governance’ relate to different forms of representation. Second, it is my contention that the use of a particular understanding of (...) incorporation directly informs the concept of internal governance in terms of constituency, structure, ownership and the locus of corporate agency. It is in this sense that I argue that the identification of corporate constituencies and the allocation of agency and ownership is a precondition of business ethics. With this aim in mind, I explore the governance in corporations as the result of the legal understanding of incorporation and the separate legal entity. I explore two historical positions from which five legal positions on the separate legal entity can be derived. These five positions provide reference points for the attribution of ownership and agency between the separate legal entity and the aggregation of individuals that together make up the corporation. Incorporation, as the legal act that constitutes the corporation, can then be shown to adopt multiple and mutually exclusive positions. These positions are central to the debate on the respective claims to agency and ownership between the separate legal entity and the aggregation of individuals. I then end the article by arguing that all concepts of incorporation create legal and economic issues regarding the allocation of ownership and agency, which makes their understanding and the choice behind them important for theories of governance. (shrink)

This essay provides a genealogy of corporate personhood as it exists currently in US law and places moral personhood in a similar genealogical context. This treatment demonstrates that the two are inextricably intertwined in both conception and institutionalized practices. We would do well to dismantle both; meanwhile, however, corporate personhood's implicit illiberal notion of collective mentality and responsibility may suggest possibilities for establishing collective counterforces to oppose activities of transnational for-profit corporations and mitigate their devastating political, economic, and environmental effects (...) upon actual people and the ecosystems upon which we depend. (shrink)

In this article we discuss the political and economic consequences of the contemporary legal theory of incorporation. We argue that incorporation has developed historically in a way that makes it internally inconsistent, but that this inconsistency is useful for the powerful because of its legal and economic effects. The corporation can “shape shift,” which is very helpful for claiming some rights and disavowing certain responsibilities. Of course this flexibility comes at the expense of consistent concepts and this leads to the (...) creation of what we term an “ideal‐type reified singular representation.” We go on to show the far‐reaching effects of this representation for legal studies, economics, and political theory, and show it worked in the pro‐corporate decision in the recent Citizens United case. We conclude by providing several alternative ways to think about the nature of corporate organization. (shrink)

The use of the nomer ‘corporate’ is hardly an issue in contemporary scholarship on corporate governance. I will argue that this nomer is important for two main reasons. First, the corporate form distinguishes itself from any other form of business representation. In this sense, it is important to know exactly how this form is different to understand how conceptions of ‘corporate governance’ relate to different forms of representation. Second, it is my contention that the use of a particular understanding of (...) incorporation directly informs the concept of internal governance in terms of constituency, structure, ownership and the locus of corporate agency. It is in this sense that I argue that the identification of corporate constituencies and the allocation of agency and ownership is a precondition of business ethics. With this aim in mind, I explore the governance in corporations as the result of the legal understanding of incorporation and the separate legal entity. I explore two historical positions from which five legal positions on the separate legal entity can be derived. These five positions provide reference points for the attribution of ownership and agency between the separate legal entity and the aggregation of individuals that together make up the corporation. Incorporation, as the legal act that constitutes the corporation, can then be shown to adopt multiple and mutually exclusive positions. These positions are central to the debate on the respective claims to agency and ownership between the separate legal entity and the aggregation of individuals. I then end the article by arguing that all concepts of incorporation create legal and economic issues regarding the allocation of ownership and agency, which makes their understanding and the choice behind them important for theories of governance. (shrink)