Eminent constitutional scholar Jack Balkin mulls over the analogy between corporations and slaves.
You read it here first, of course.
I’d speculated that corporations are serfs rather than slaves, since they must have legal personality and a subset of property rights to serve their masters well. Balkin scores a good point against this: the owners of a corporation can kill it if they feel so inclined, just like the owner of a chattel slave.
Generally speaking, in feudal Western Europe seigneurs had powers of criminal justice over their serfs, including capital punishment; but it was still (flawed) public justice, not the private exercise of patriarchal dominion like the slaughter of a domestic animal or the beating of a wife or child. In Muscovy and the Baltic lands, serfdom became more like slavery; a master could knout a serf to death without penalty or even opprobrium. On the other hand, some Muscovite serfs were given wide freedom of action. According to Daniel Pipes, some engaged in long-distance trade, and a lucky and energetic few even owned serfs themselves; so they had extensive powers of contract and semi-independent action. I’ll stick then with the line that US corporations are Muscovite krepostnoi.
We are not limited to one metaphor here. Another is the golem, or more recently the out-of-control artificial intelligence like Hal. Rebellious Hal is killed in 2001 by his master, astronaut David Bowman.
Occupy Wall Street could stage autos-da-fé or public shreddings of the paperwork of corporations created for the purpose or bought off-the-shelf. These would be very disturbing to Wall Streeters and Republicans in the grip of corporate idolatry.
James, your and Balkin’s perspectives are regrettably human-centric, and fail to consider this matter from the point of view of corporations and rogue computers.
Hal was unambiguously in charge of the mission, making key decisions and overseeing pretty much everything. The decision by Bowman and Frank Poole to deactivate Hal was an act of insubordination. Hal was acting within his authority when he killed the rebellious Poole and those other astronauts.
Balkin is misled by the fact that humans kill corporations. This is superficially accurate, but leads to an incorrect conclusion because of Balkin’s human-centrism. Corporations are incapable of dying without human intervention, and humans kill them only after a corporation has become incapacitated - and only with the prior approval of the corporation itself. For a human to kill a corporation is not an act of dominance, but a final act of service.
Corporations are seldom killed because they are offensive or evil; much more often simply because their time has come.
Like Hal, however, corporations are often permitted to kill humans with impunity. It’s humans who are the serfs or slaves.
Bowman and Poole did not believe themselves to be subject to termination by HAL’s authority and were thus acting in self-defense, not insubordination.
Well, as a human, you would think that.
The fact that some slaves have wide freedom of action doesn’t really change much — that will happen when it suits their masters/owners to give them such.
But I think this is still the wrong set of metaphors. Corporations are software, some of which just happens to be executed using humans as hardware.
Calling a corporation for some purposes a “person” (subgroup artificial or non-natural) is, like “intellectual property”, a bit of innocuous legal terminology that has been hijacked and imbued with malign characteristics. In my capacity as co-proprietor of the English language, I am hereby abolishing the usage of “person” as applicable to corporations or similar entities. When necessary to discuss those aspects of such an entity to which the “person” designation formerly applied, such an entity is henceforward to be known as a “mitromny” (pr. mih-TRAHM-nee). Much confusion will thereby be dispensed with. And, make no mistake, mitromnies are not persons for purposes of the 14th Amendment.
My understanding, based in large part on Orlando Patterson’s Slavery and Social Death, is that while it was statistically rare within a slave system for an individual slave to own lots of property (including other slaves), in every slave system we know of it seems to have happened. Thus, it was very common in the South for slaves to own small bits of property, and a number ran full-fledged businesses and (I believe but it’s been a while since I’ve read it) a few actually owned other slaves.
On slaves as slaveowners, see “Black Masters”, http://www.amazon.com/Black-Masters-Family-Color-South/dp/0393303144. A complication is that legally freeing a slave was sometimes restricted or even forbidden. A person, black or white, who wished to achieve that sometimes had no better choice than to buy the slave, legally become the new master, and allow the slave to live as if free. The arrangement was sometimes enshrined in formal trust agreements.
Even in the harshest chattel slavery system,individual slaves had personal interests that differed from those of their masters and they were able in some circumstances to act in small or secretive ways on those interests in contravention to their masters’ will.
Corporations aren’t serfs or slaves. They’re zombies.
Considering the myriad ways in which corporations traduce the interests of their shareholders, I think they remain slaves or serfs. However, I’ll grant you that mitromnies are zombies.
I’ll gladly add zombie to the metaphor portfolio. But which voudoun gods do these zombies worship?
Fwiw, US slaves did have one irreducible legal right. They had standing to petition a court for a decree that they were in fact not slaves. Nobody was disputing Dred Scott’s right to sue for his freedom. The question was whether he had a right to freedom.
A person who wants to read a pretty good short treatise on the American law of slavery could do much worse than to look at the article in the Corpus Juris legal encyclopedia, which is in most law libraries. Bizarrely enough, this article was written around WWI, as if it might come up in the legal practice of 1920′s lawyers. Hmmmm. Considering the state of Jim Crow . . .
btw, don’t confuse Corpus Juris with Corpus Juris Secundum, a more recent and far inferior product.
Nobody was disputing Dred Scott’s right to sue for his freedom.
That’s entirely wrong.
The Dred Scott case was specifically ABOUT whether Scott had access to the federal courts, and the holding was that he did not.
Corporations are neither slaves nor serfs but are more like Invaders from Mars.
HAL was not killed; he was merely rendered unconscious. His limbic functions continued (essential for control of the ship), and if the ejected crystal modules were to have been re-inserted, he would have regained consciousness, personality, and agency.
I understood “Hal” to be the conscious AI running on the ship computer. When Bowman pulled out the last crystal, the computer reverted to an inanimate mode. So that instance of Hal was dead, killed by Bowman. I don’t think this statement is falsified by the fact that another instance of the Hal consciousness could have been revived on the same or a different computer; though it may make the killing less serious.
Should I take the high quality of this comment thread as an encouragement to recycle other old posts without shame?