Bad Company: The Corporate Appropriation of Nature, Divinity, and Personhood in U.S. Culture

In the manner of subliminal advertising, the corporate communications that warn you that someone might be stealing your identity also might be acknowledging that corporations are responsible for the biggest identity theft in history. If corporations are now alive, and have become persons, human beings might already be dead things. In this article, I provide a condensed, necessarily elliptical cultural history of some of the critical concepts pertaining to the impersonal impersonations that constitute corporate personhood. By examining the naturalization, animation, legal authorization and structural deification of the corporate person, I hope to illuminate the ways corporations walk, disembodied, among us.

In a prior publication, I coined the term corpography to connote the limited forms of self-representation—such as advertisements, filings, and corporate histories—that corporations can generate.

See Richard Hardack, New and Improved: The Zero-Sum Game of Corporate Personhood, 37 Biography: Interdisc. Q. 36 (2014) (a special issue on life-writing and corporate personhood). All emphases in this article are added unless noted as “eio” (emphasis in original).

I also argued that personhood is a zero sum game, and that the more “personhood” and human rights a corporation attains, the less of those traits and rights people retain. Because it is a purely metaphorical contrivance, the concept of corporate personhood is often represented through images of mechanical, generic, and vampyric forms of existence. In other words, impersonal corporate systems mimic human processes and interactions, or uncannily but defectively imitate and siphon the personal qualities of people—they are entities that steal identities. I focus here not on advertising, but the causes and effects of corporate ontology in the U.S. in cultural and legal terms.

I track the Hobbesian lineage of the corporate form, but also the ways the corporation has filled the cultural space vacated by our abnegation of anthropomorphic notions of god and Nature (i.e., other personified fictions of collective existence that preceded it. I capitalize Nature at points to connote a deified, impersonally personified, and transcendental entity). I briefly touch on the disturbing ways in which pantheist and neo-vitalist theories of Gaea, which personify Nature as a living Being with a soul and agency, can reflect corporate ontologies and help substantiate the legal and deontological frameworks that afford corporations souls and personhood. The pressing question is whether corporations conceptually are persons or nightmarish things impersonating persons.

Commercial entities with strictly delimited rights and liabilities, corporations are created at the largesse of governments or sovereigns; as such, they are ineluctably artificial and contingent. In the well-known U.S. Supreme Court case of Dartmouth College v. Woodward, Chief Justice John Marshall asserted that “Being the mere creature of law, [the corporation] possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.”

Trustees of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819).

The only interest a corporation has under its charter is commercial—it is created for a strictly mercantile purpose.

Non-profit corporations—for example, most universities—are distinct entities, but even they increasingly are infiltrated by the structures, expectations, and behaviors of for-profit corporations. Even most B corporations, the relatively miniscule number of corporations that are dedicated to social causes such as renewable energy, are still defined and constrained by the corporate form; while some of these businesses behave much more responsibly than the average corporation, they still use their social agendas to promote their businesses, and to brand themselves as putatively anti-corporate, while still taking advantage of the corporate form.

In many ways, the ever-increasing wealth gap in the United States is actually a personhood gap. The effect of corporate personhood, which operates in tandem with privatization, is to dehumanize people, turning them into things that have no rights—not the right to have access to healthcare, education, or courts rather than arbitration; to retire; to unionize; to speak; and even to vote. Many of those rights have been directly and indirectly transferred to corporations that can lobby and set agendas ranging from taxation to healthcare, education, military spending, election rules, gerrymandering and campaign spending. As codified by the ironically titled Citizens United case, infra—the 2010 Supreme Court case that held that corporate money is speech and affirmed that corporations are people—corporations have come to control speech and representation in almost all media. It therefore becomes critical to track the manifold cultural, aesthetic, legal, and ontological inversions that have allowed corporations to regulate the state. The causes and effects of these inversions affect society at all levels and in all contexts. As one disturbing example, it is now commonplace for many corporations, even those not immediately involved in information technology or social media, to refer to persons as the products rather than the consumers. Virtually all media, which now includes everything from entertainment to politics, serve as a pretext or lure for corporate advertising and manipulation, and a distraction from corporate maneuvering. All these inversions and effects are intimately predicated on the notion that the corporation is now the person.

To address the evolving and troubling relationship of the corporation to personhood in U.S. culture, one needs to consider its affiliations with, and divergences from, Nature and the nation-state. I argue that a once deified Nature, which was also putatively animated with some form of a soul, has been superseded directly by the Corporation with a soul, which begins to take on the exceptional, numinous, or inhuman characteristics of the divine—it is a disembodied, collective thing that is animated, ubiquitous and theoretically immortal. The corporation also is engaged in a zero-sum game with Nature, and finally the nation-state. According to Marx, “The devaluation of the human world increases in direct relation with the increase in value of the world of things.”

Karl Marx, The Economic and Philosophical Manuscripts: Early Writings 323–24 (Rodney Livingstone & Gregor Benton trans., 1975).

The relationship between human and corporate personhood and identity implicates our interactions with religion, deified Nature and sacrificial systems of gift exchange. For these reasons, I treat the corporation not primarily as a commercial enterprise—though its legal and economic functions are of course vital to its existence—but as a cultural phantasm, a kind of black hole that draws in more and more cultural phenomena into its orbit. In a variety of contexts, people barter their attributes to corporations—they are not trading liberty for security, but “souls” for identity. As I will argue, the contemporary corporation has come to guarantee certain rights at a price, in much the way the Hobbesian state once did. As the corporation comes to serve as the de facto guarantor and distributor of culture, it can be amoral at best, and in practice it serves as a dominant pathological personality and helps reduce all human endeavor to commercial interest. Almost everything produced in that culture will reflect that pathology and priority. Ironically, the expansion of corporate rights has periodically proceeded under the unwittingly masochistic claims of corporate owners, as in Burwell v. Hobby Lobby Stores, Inc.; it is as if hosts were agitating for the privileges and prerogatives of parasites.

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

In his recent novel Glow, Ned Beauman proposes that “killing a corporation was like killing a colony of sentient fungus. . . . United Fruit was a hundred and eight. Chevron was a hundred and eighteen. De Beers was a hundred and twenty. Unlike governments, corporations endured: deathless, efficient, self-renewing.”

Ned Beauman, Glow 43 (2015).

This corporate displacement fulfills an arc Melville first traced in full in Moby-Dick, which emblematically situates the failing ubiquity of Nature against the rising ubiquity of the corporation. The leviathan of Moby Dick—a term Melville partly developed from Thomas Hobbes, to whom I return—represents, among other things, the demonological transition from the U.S. conception of Nature as an American provenance that serves to guarantee a universal natural law, to a conception of the transnational corporation that is everywhere the same. In that novel, Ishmael comes up against “the unearthly conceit that Moby Dick was ubiquitous; that he had been encountered in opposite latitudes at one and the same instant of time. . . . [and] not only ubiquitous, but immortal (for immortality is but ubiquity in time”).

Herman Melville, Moby-Dick; or The Whale 182–83 (Harrison Hayford, Hershel Parker, G. Thomas Tanselle, eds., 1988) [hereinafter referred to as MD].

In some ways unprecedented and anomalous in history, the corporation is a private institution that is everywhere, and everywhere precisely the same—and hence not only immortal, but ubiquitous.

The “residence” and “citizenship” of a corporation matters of course in the context of jurisdiction and local regulation. In what typically involved a race to the bottom, U.S. corporations began to incorporate in states, primarily Delaware, that offered not only the most comprehensive legal system, but the most permissive rules for incorporation and corporate liability and taxation. While some states, such as California, enacted legislation related to incorporation that would protect shareholders, most corporations could simply shop for better provisions elsewhere. But the state of incorporation is largely a fiction of locality and specificity, and another provision that allows for the kind of conceptual disconnection endemic to the corporate form; it has little bearing on where a corporation actually conducts its business or its ontological status as stateless. Many corporations that incorporate in Delaware, for example, simply maintain the equivalent of a post box there, without any attendant human presence.

These initially maritime joint-stock companies, which settled the new world and for Melville were emblematized by the new global enterprise of whaling, were also intimately involved in all aspects of colonialism and the global slave trade—they were precursors of the modern corporation in many contexts. As Malick Ghachem notes, historians tend to assume the priority of the nation-state over such entities as the corporation as subjects of inquiry; but colonialism was advanced by conflicts between national trading companies as much as it was by disputes among the colonial powers themselves.

Malick Ghachem, The Forever Company: How to Narrate the Story of an Eighteenth-Century Legal Person (The Case of the Campaignie des Indes), Address Before the Legal Bodies Conference, Leiden University Centre for Arts in Society (May 17, 2014). Corporate names often reflect the conceptual and linguistic processes of capitalist mergers, which in perverse ways appear to imitate what capitalists often fantasize represents the Darwinian violence of nature. Chemical Bank, for example, takes over or cannibalizes Chase Bank, but retains the “conquered” name or vanquished logo as its company brand. In this variation of what Richard Slotkin terms regeneration through violence, the victorious corporation incorporates to itself through forms of sublimated and sometimes direct aggression. See generally Richard Slotkin, Regeneration Through Violence 1973. This conglomeration and aggregation of the corporate form often has been marked by an exploitation of nature, colonialism, and aboriginal dispossession. A logic of corporate invasion presides over a wide array of displacements and transfers, especially the displacement of what were once native inhabitants and species. The specifically joint-stock hunt for Moby Dick in Melville’s novel, for example, takes place aboard a ship named after the exterminated tribe The Pequod. In consonant fashion, the corporation takes over the symbol of that which it has incorporated in its mergers and acquisitions, and the primary telos of the corporation is to commercialize, supplant and finally incorporate, figuratively and literally, nature itself.

To explain how the corporation emerges as the successor to or fulfillment of transcendental Nature, I here briefly address pantheistic (primarily) American writers who, perhaps unexpectedly, served as precursors to and harbingers of contemporary corporate culture. The type of transcendentalists most concerned with the collective and impersonal aspects of Nature, pantheists evoked its attributed power, scope, and functions in ways that consistently comport with the same vectors of the “animated” corporation. Many pantheistic depictions of merger with Nature either predict or are co-opted by the corporate age that soon follows. For example, in All Is One: A Plea for the Higher Pantheism, Edmond Holmes describes the fall of man from nature:

The animism [that] peopled the outward world with nature spirits was the instinctive protest of man’s heart against the materialism of his conscious thought. . . [When] animism fell into disrepute . . . . it made possible [] scientific exploration . . . . [but] as belief in the supernatural waned . . . . especially in Protestant countries . . . materialism reject[ed] the supernatural, and [gave] a mechanistic explanation of life . . . . [the loss of animism]. . . . empt[ied] nature of her own spiritual life.

Edmond Holmes, All Is One: A Plea for the Higher Pantheism 16–17 (1921).

Transcendentalists believed that some mysterious, ubiquitous principle or force infused universal Nature and also “animated” all people, representing an impersonal annexation of the personal. Such animation or life could not be restricted to people, or even organic matter; as Melville suggest throughout his novel Mardi, the entire world is alive, and has a soul. Animation is the principle of transcendental Nature that guarantees and connects all life, and renders all life equivalent: “With Oro [Pan], the sun is coeternal; and the same life that moves that moose animates alike the sun and Oro.”

Herman Melville, Mardi and a Voyage Thither 615 (Harrison Hayford et al. eds., 1970) (1849).

For transcendentalists and some political theorists, Nature once served as the universal force that authorized American democracy (as well as manifest destiny). But as the nation-state came to be unified not by Nature—which was imagined to be everywhere the same—but corporate technologies such as the railroad and telegraph, the corporation became the new animated clod. A key question, since transferred to the corporation, is what kind of speech animated Nature could make. Emerson believed that “The Soul which animates nature is not less significantly published in the figure, movement and gesture of animated bodies, than its last vehicle of articulated speech . . . . A statue has no tongue, and needs none.”

VI, Ralph Waldo Emerson, Behavior, The Complete Works of Ralph Waldo Emerson VI 169 (1904) [hereinafter referred to as Works].

The law itself once situated corporations as artificial constructions that mimicked nature. Some twentieth-century legal cases, for example, specify that the state animates corporations: “A corporation is a creature of the State. It owes its very being to the State. “Into its nostrils the State must breathe the breath of a fictitious life for otherwise it would be no animated body but individualistic dust [citation omitted].””

Cloverfields Improv. Assoc. v. Seabreeze Props., Inc., 32 Md. App. 421, 425 (Md. Ct. Spec. App. 1976).

After Lukács, Michael Rogin proposes that “every cog is human; when power is attributed to emblems, and they do human work, the writer has succumbed to animism.”

Michael Rogin, Subversive Genealogy 115 (1983).

Disturbingly, some posthumanist and neo-vitalist theory, which tries to erase hierarchical distinctions between species and organic and inorganic matter, can play into the notion that the corporation is itself alive, and has personhood, rights, and a soul. For example, under Roberto Esposito’s resuscitation of vitalism—which echoes antebellum pantheism, contends that all life is equal and should be approached impersonally, and is meant to transcend the limitations of the human/humanism—the impersonal corporation could also be considered alive.

See generally Roberto Esposito, Bíos: Biopolitics and Philosophy (Timothy Campbell trans., 2008) (2004).

In the United States, the history of the corporation also tracks the shift from romanticism to naturalism and back to neo-romanticism, all of which, perhaps surprisingly, maintain many of the same premises regarding the aggregate forces of Nature/the corporation, and primarily shift only their reaction to those premises. Under naturalism, nature represents an impersonal automaton, an emblem of brute/blind force. Yet as Walter Benn Michaels suggests—through the “discrepancy between the behavior of individuals and that of the aggregate”—Nature ultimately can turn everything into (and problematize the very notion of) a person: “dreaming of the “monstrous,” [Frank Norris’] Presley [in The Octopus] is already dreaming of the corporation.”

Walter Benn Michaels, The Gold Standard and the Logic of Naturalism 211 (1987).

Beginning with Hobbes, the teleology of the corporate form would take it from being a surrogate for a deified Nature and “centralizing” nation-state to being their successor or near-successor. Melissa Aronczyk observes that corporate advertisers and branding agencies now legitimate and maintain the nation-state as one of our primary cultural reference points.

Melissa Aronczyk, Branding the Nation: The Global Business of National Identity 64–65 (2013).

In the next section, I focus briefly on Richard Powers’ novel Gain because it offers insights into the idioms of corporate biography, and provides a useful bridge from my preceding discussion of nature to the subsequent section addressing corporate agency and personhood. Gain presents a Joycean history of advertising language as it evolves from the familial and personal to the corporate. Literalizing the concept of the corporate legal fiction, Powers presciently wrote a biography of what emblematically began as a soap company as it regressed from the Revolutionary period to become a kind of postmodern golem. (Selling soap of course became the virtual signet of early television advertising, the quintessential mechanism for sponsoring content). Tracking the way the Clare Corporation produces increasingly deleterious products, Powers’ narrator develops a biographical ontology and corresponding language that become ever more “corporatized” as they near the present. As it spans several hundred years, and businesses become more corporate and advertising more pervasive, the novel grows more impersonal in its precepts and characterizations; it is as if a roman à clef turned into a CGI biography scripted by an algorithm. Joseph Dewey suggests “the narrative of Clare International reads like an absorbing—and convincing—history.”

Joseph Dewey, Understanding Richard Powers 110 (2002).

As David Foster Wallace intimates throughout The Pale King, the problem isn’t just that contemporary corporations are treated as if they were people, but that people start behaving as if they were corporations.

David Foster Wallace, The Pale King 2011.

Maliszewski cites Powers’ own impression that “the literary approach” to business, which relies on humanist principles and characters to dramatize corporate systems, has become inadequate, and led him to pursue an articulation of the impersonal.

Maliszewski, supra note 39, at 166.

Beginning with their Hobbesian chartered inceptions, corporations have always been artificial entities imbued with personhood, or souls. The deafening, largely unregulated speech they make in most contemporary societies is perversely proportionate to the absence of an identifiable speaker (behind the spokesperson)—ultimately, theirs is speech without an individual orator or source, but it generates a discourse that permeates everything. As Maliszewski notes, in Gain the protagonist’s central mission is to discover the corporate source of her cancer, but no personal agency, no person, exists to be found.

Maliszewski, supra note 39, at 163.

For Powers, well before the Citizens United case, infra, corporations had achieved personhood by hijacking the rights or privileges of persons, and specifically by co-opting the emancipation of slaves: “If the Fifth and Fourteenth Amendments combined to extend due process to all individuals, and if the incorporated business had become a single person under the law, then the Clare Soap and Chemical Company now enjoyed all the legal protections afforded any individual by the spirit of the Constitution.”

Powers, supra note 7, at 159.

But in the ontological and practical economic aspects of the zero sum game of personhood, corporate enfranchisement was gained at the expense of the disenfranchised. African-American slaves were freed and became legal persons under the aegis of due process, but corporations, the greater Elvis, effectively appropriated those rights. Corporations asserted they too had the rights of natural persons under the Fourteenth Amendment (petitions that have since grown into claims of aggregations of super rights, which allow corporations, in terms of reach and effect, to broadcast what are in effect millions of voices in their own names). Instead of being fractions of people, corporations became composites of all people. But African Americans had to invoke the rights of corporate persons to enforce their civil rights; they were able to challenge segregation under Heart of Atlanta Motel Inc. v. United States, not because it was illegal to discriminate against black people as persons, but because it was illegal to interfere with interstate commerce (specifically with black truckers seeking food and shelter while traveling in the segregated South) under the Commerce Clause.

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).

The history of the corporation is closely connected to the history of the modern state, the abstract collective that provides an aggregate identity to those who belong to it or live under its field of influence. Hobbes could guarantee the continuity of the state by making it an impersonal entity that traversed the lifespans and limitations of individual rulers; the state was represented by particular sovereigns or men, but they were in a critical sense mere placeholders. Similarly, the corporation becomes an impersonal structure, precisely divorced from its owners or employees, who are not only temporary, but, in relative terms, fungible. Like the nation-state, the corporation is an impersonality we are in service to, but one that ultimately displaces and supplants its subjects; it is as if we have ended up as hosts to the impersonality, which has become more virulent, resistant, and embedded over time.

It is important to consider the relationship of the corporation, the current body of power in society, to its antecedent forms, particularly the bodies of Nature and the king. The corporate body retains but transforms the mystical and inhuman properties associated with the king’s body; as with a sovereign body, it represents a conjunction of an extra-human body and an exceptional or non-human personality (though many now would allege that the king and corporation also are equally persons). Aggregate and symbolic bodies of power typically bear contradictory or mystical attributes. In many cultures, for example, “It was not proper to refer to [the king’s] body or to imply that he had an ordinary human body at all. A special word was used instead, signifying the kingly personality.”

Elias Canetti, Crowds and Power 414 (Carol Stewart trans., 1973) (1960).

Yet as Žižek might argue, a corporate figurehead typically must be created through a process of fetishization and reification, or

the “false ‘personalization’ (‘psychologization’) of what are in fact objective social processes. It was in the 1930s that the first generation of Frankfurt School theoreticians drew attention to how—at the very moment when global market relations started to exert their full domination, making the individual producer’s success or failure dependent on market cycles totally out of his control—the notion of a charismatic ‘business genius’ reasserted itself in ‘spontaneous capitalist ideology,’ attributing the success or failure of a businessman to some mysterious je ne sais quais which he possesses.

Žižek, supra note 16, at 49.

Hobbes’ work remains critical for understanding the artificial person of the corporation and its relation to bodies—bodies of power, science fiction bodies, and dematerialized bodies. In political as well as sociological contexts, the corporation has become a less accountable version of the absolute sovereign, as well as the embodiment of actorhood and agency, Hobbes imagined that the state had to be. Beyond a king, the corporation is both hyper-embodied and disembodied. That erstwhile disembodiment of course does not diminish the materiality of the corporate form, even as a legal fiction, or its effects; that putative “immateriality” is a construct that serves to bolster and shield corporate power.

I develop my argument about the materiality of the corporation, and the corporate use of nature as camouflage, more fully in New and Improved: The Zero-Sum Game of Corporate Personhood (book in progress).

The corporation fulfills one particularly American cultural fantasy regarding the transcendence of materiality. The goal of Emerson’s transcendentalism is to transcend both individuality and the male body—to merge into Nature, into the blithe air itself, and become a transparent eyeball that is nothing, but sees everything. Seeking to experience Nature as a disembodied and unobserved observer, Emerson wants to become invisible and immaterial, yet omnipresent. We can also transcend that self in the corporation, which is a form of virtual embodiment that, through the oxymoron/fiction of incorporation, generates an artificial person that has no body. As one of David Foster Wallace’s characters in The Pale King observes, “Doesn’t the term corporation itself come from body, like “made into a body”? These were artificial people being created.”

Wallace, supra note 40, at 140.

The modern form of the corporate enterprise also performs many of the precepts of poststructural semiotics—for example, it advances a deliberate disconnection of act/speech from source/intention. In most contexts, we have corporate signifieds, and, both legally and ontologically, no signifiers of a different sort—no one responsible for them legally or culturally. In symbolic and practical ways, as DeLillo intimates throughout Mao II, the corporation is, in dialectical fashion, both a cause and effect of the symbolic death of the author in our culture. The early twentieth-century populist orator Cyclone Davis asserted that he “would not be surprised to hear that some man had invented a machine for making books that dispensed with [the] author . . . and ground out paragraphs by steam.”

Michaels, supra note 34, at 209.

But I also would contend that corporations are not primarily communicating about products or even themselves: they are communicating, performing and proliferating an epistemology and ontology, and in this sense also serve as our last Big Others, systems without centers, disquisitions without speakers, constellations of effects and processes without causes or affects.

As we can see in many Hollywood films, some forms of such corporate ventriloquism are connected to anxieties regarding possession and dispossession: for example, the dead that colonize life, and speak through and inhabit us. The undead and the many forms of artificial or altered beings that look as if they were alive, but only imitate life, often have some affinity with the corporate person. What Hobbes describes as the artificial person of the corporation in part evolves into a form of artificial intelligence, embodied in the various science fiction and horror film impersonations of the human form. Aside from the fact that some corporations rely heavily on technologies that simulate and even replace life, and what we might term a myriad of reality simulators—from games to movies and Japanese sex robots—impersonated forms of reality are typically produced by, and are unnatural allies of, corporations because they all involve imitations of life. (Benjamin Sovacool argues that the corporation itself has emerged as an unrecognized form of instrumentally successful, but socially failing, technology).

Benjamin K. Sovacool, Broken by Design: The Corporation as a Failed Technology, 15 Sci. Tech. & Soc’y 1, 2–5 (2010).

The characteristically artificial personhood of the corporation should now be situated in the context of the artificial world of simulations and computers, but also of the collective body of the state—itself a kind of foundational science fiction motif. As Sharon Cameron summarizes the Hobbesian lineage of personhood,

The word person confers status (designating a rational being in distinction to a thing or an animal), value, even equality; it establishes intelligibility within a political and legal system, indicating a being having legal rights or representing others’ rights, either because he is a human being or natural person or because he is a corporate body or artificial person. (For Hobbes an artificial person must also be a natural person.) It does not, however, presume anything of substance, nor did the word persona from which it derived. A persona was never essential, since a persona is not an actor but the mask which covers the actor, or the character who is acted. . . .

Sharon Cameron, Impersonality: Seven Essays viii (2007).

The legal creation of personhood made it possible to redefine human identity within the confines of the nation-state; ultimately, we could take personhood away by treating someone as a thing, or, conversely create personhood by treating a thing as if it had personal attributes and rights. In other words, if we begin with a definition of personhood that situates the concept as not simply constructed, but pointedly artificial, it is almost inevitable that our other institutions, such as corporations, will be defined under similar coordinates. Hobbes begins the subordination of personality to impersonality in his conception of the corporate form. As Cameron continues,

For Hobbes, the definition of a person (or agent) is what we agree to treat as a person; a being is determined human not by philosophical definitions or by man, but by law. To be a person or agent, according to Hobbes, it is not sufficient to consider yourself a person; you must also be considered as possessing agency. In distinction, personality stresses self-ownership, the of or possessive through which individuality is identified as one’s own. Impersonality is an idea that Eliot made commonplace. But whereas Eliot coined the word narrowly to indicate the extinction of personality that defines the artist, this extinction . . . has different contours . . ..

Hobbes is one of the first modern theorists of agency and agency law—his work addresses who can represent whom and what, on whose behalf, and with what responsibility and liability. As Quentin Skinner observes, Hobbes “informs us in Chapter XVI of Leviathan [titled “Of Persons, Authors and Things Personated”] that the state can actually be defined as “One Person.”

Quentin Skinner, Hobbes and the Purely Artificial Person of the State, 7 J. Pol. Phil. 1, 3 (1999).

Addressing how Hobbes classifies fictions of personhood (which become salient for the creation of corporations), Skinner observes that

Hobbes proposes no particular term to isolate this category, but it may be helpful to designate them purely artificial persons to distinguish them from those who voluntarily take on this status by authorizing others to represent them. . . . Hobbes [indicates] that two sub-classes need to be considered: those whose words and actions can be ‘truly’ attributed to them, and those who can only have words and actions attributed to them ‘by Fiction.’ Nothing further is said in Leviathan about the class of purely artificial persons who are also fictitious. But in De Homine it emerges that what Hobbes has in mind are the characters impersonated by actors on the stage: For it was understood in the ancient theatre that not the player himself but someone else was speaking, for example . . . .

If I play the part of Agamemnon on the stage, the actions I perform . . . will not ‘truly’ be taken to be Agamemnon’s actions, however, but only ‘by fiction’ and a willing suspension of disbelief. This will especially be the case if I follow the convention of pointing out that I am merely engaged in a performance.

Skinner, supra note 66, at 15.

Skinner identifies the initial bases for artificial agency or personhood, which also provide a foundation for the development of artificial rights:

Hobbes regards some human beings as purely artificial in this sense. But he is more interested in the fact that various inanimate objects and even figments of the imagination can be classified in a similar way. . . . Since these are ‘things Inanimate’ they ‘cannot be Authors, nor therefore give Authority to their Actors.’

Nevertheless, they can perfectly well be personated or represented ‘by a Rector, Master, or Overseer’ who can be commissioned and thereby given authority to act on their behalf. Among imaginary objects he singles out the gods of the heathen. Such idols obviously cannot be authors, ‘for an Idol is nothing.’” Nevertheless, in ancient times such deities were frequently recognized as having the ability not merely to own possessions but to exercise rights. As in the case of the hospital and the bridge, these capacities stemmed from the fact that authorized persons (in this case officiating priests) were assigned a legal right to act in their name.

Id. at 16.

Hobbes, however, believed the representative/sovereign and those who authorized him were accountable for their actions, and that those actions could be directly ascribed to their agents; he authorized the exercise of power, not its absolution. But the power concentrated in the body of the sovereign has become concentrated in the body of the corporation—an artificial body even more removed from people. Wanting the state to restrain and regulate individual violence and economic crime, Hobbes believed an impersonal system could regulate the behavior of personal players. But the impersonal corporation increasingly took over, and it is in critical ways unregulated and unchecked in power; this denouement reflects a systemic corruption of the principles that hypothetically justified the legitimate but limited function of corporations. In this Hobbesian lineage, the sovereign state charters/creates/empowers the Mephistophelean corporation that will inevitably try to commit state parricide.

In Leviathan, Hobbes repeatedly prioritizes the shared, the proto-universal, and the common. The notion of the commonwealth is predicated on a sharing of things that cannot be divided: for example, the common interest; the common law; and what Hobbes frequently terms common discourse. According to Norberto Bobbio, Hobbes defines corporations as subordinate associations, which have as their ends “certain common activities for some common benefit or of the whole city.”

Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition 179 (1993).

In Hobbes’ writing, we can see that the creation of the modern state was in many ways coterminous with the creation of the proto-corporate enterprise. In Leviathan, Hobbes already envisioned corporations as parasites on the state and as corrupt bodies even as he valorized their advantages: he effectively warns us of “the great number of corporations which are, as it were, many lesser commonwealths in the bowels of the greater, like worms in the entrails of a natural man.”

Hobbes, supra note 68, at 241 (language modernized).

The “body politic”—and the notion that society is an organic community, a social body—is supplemented and deformed by the corporation, another fictitious aggregate body, representing an entity that is precisely immaterial. If, in traditional, conservative social theory, “the presupposed organic unity of Society is perturbed by the intrusion of a foreign body,” the unity of our society is now in many ways predicated on the presence of a foreign body—the corporation.

Žižek, supra note 29, at 127.

As the idea has played out in U.S. culture, to incorporate is not to join a common society, but to transcend individuality—in a society putatively obsessed with individuality—in some larger natural or artificial body. To incorporate is in some ways to merge one’s individual body into a collective body, to renounce human limitations, and, in the centuries after Hobbes, the common in favor of the private shareholder. But the paradox is that many corporations systematically invert the characteristics of the public and the private, from concepts of privacy to those of public benefit and welfare. In Democracy in America, Tocqueville concluded that pantheism, the aforementioned deification of an impersonal Nature, represented a seductive form of specifically American incorporation:

If there is a philosophical system which teaches that all things material and immaterial . . . are to be considered only as the several parts of an immense Being, who alone remains eternal amidst the continual change and ceaseless transformation of all that constitutes him . . . such a system, though it destroy the individuality of man, or rather because it destroys that individuality, will have secret charms for men living in democracies. . . . It naturally attracts and fixes their imagination.

Alexis de Tocqueville, Democracy in America II 31–32 (Phillips Bradley, ed., Henry Reeve trans., Francis Bowen, rev., 1953).

After the Civil War, virtually all transcendental rhetoric of Union in Nature became deflected to rhetorics of incorporation (which in figurative terms also often entailed individual dismemberment). The sometimes seemingly abstract contest between the individual and the corporate mass is evident in more concrete terms, for example, in the jury instructions of an 1886 Mississippi Supreme Court case:

This poor negro has the same right to have his matters adjudicated as the defendant, but things have come to such a pass in this country that a railroad company is very much injured if an humble man dares to bring them into the courts. If he dares to appeal to the juries of the country, it is high treason. I say you must consider who the parties are, and who is more likely to overawe witnesses, -a corporation of this sort, or a private individual. I put it to your own knowledge of human nature, whether it is not true that immense corporations, controlling immense armies of operatives, are not more likely to overawe witnesses . . . .

Newman v. Vicksburg & M. R. Co., 64 Miss. 115, 122 (Miss. 1886).

Accumulation and aggregation are usually zero-sum games; the more money, power, sheer mass and ontological privilege corporations have, the less is left to individuals. As many science fiction films suggest, we increasingly feel as if we are being fed into a giant machine. Transcendentalists had fantasized that Nature was a bulwark against and alternative to the mechanistic corporation and the emerging corporate society, but the language used to evoke both entities revealed a discursive and ontological commonality. Emerson had wanted men to merge into Nature and not society. In his overtly Hobbesian mode, Emerson notably warned in “Self-Reliance” that “Society is a joint-stock company, in which the members agree, for the better securing of his bread to each shareholder, to surrender the liberty and culture of the eater. The virtue in most request [sic] is conformity. Self-reliance is its aversion.”

Emerson, supra note 23, at 49–50.

In Moby-Dick, Ishmael tries to imagine an alternative to the social-commercial enterprise of his nation, even as he embarks on a commercial whaling expedition, by “merg[ing his] own individuality” with Queequeg “in a joint stock company of two.”

Melville, supra note 9, at 320.

I don’t have space to document the assertion at length, but American pantheists emblematically seek to transcend the boundaries of individual male identity, and merge with other men into collective Nature; and they lose individual agency and will, believing that their actions become archetypal and even involuntary in Nature. These processes actually comport with the premises of, and culminate in, the post-industrial corporation. The language of pantheism is one of merger into Nature—a rosy melting of all into one, or the one into the divine All.

I address this dynamic of merging in full in “Not Altogether Human,” but D. H. Lawrence offers a useful summary, for example, of Whitman’s pantheism: “Merging! And Death! Which is the final merge.” D. H. Lawrence, Studies in Classic American Literature 178 (1964). Emerson and many pantheists fetishize this imagined merger as ego-transcendence; in Moby-Dick, Ishmael both is and warns us of the man who “takes the mystic ocean at his feet for the visible image of that deep, blue, bottomless soul, pervading mankind and nature . . . In this enchanted mood, thy spirit ebbs away to whence it came: becomes diffused through time and space: like Wickliff’s pantheistic ashes . . . . Heed it well, ye Pantheists!” MD, supra note 9, at 159. That self is lost to the immense, overwhelming collective of Nature, which soon reemerges as the corporation.

Instead of merging with Nature, a prospect writers such as Emerson and Whitman extolled, people began merging into corporations: Michaels asserts, for example, that for Cyclone Davis, “the individual is merged in the money machine of which he is an integral part.”

Michaels, supra note 34, at 200.

As Melville established in Moby-Dick, after Hobbes, a corporation functions as a collective being without a body, an abstraction incorporated as a fictional leviathan: for Powers, it is “an aggregate giant, one that summed the capital and labor of untold Lilliputians into vast, limbered Leviathan.”

Powers, supra note 7, at 158.

[a] ‘monoculture.’”

Wallace, supra note 40, at 271.

Hobbes imagined the very purpose of the corporation was to corner markets—and in some sense to consolidate those who give it agency into its aggregate being:

The end of their incorporating is to make their gain the greater; which is done two ways: by sole buying, and sole selling, both at home and abroad. So that to grant to a company of merchants to be a corporation, or body politic, is to grant them a double monopoly, whereof one is to be sole buyers; another to be sole sellers. For when there is a company incorporate for any particular foreign country, they only export the commodities vendible in that country; which is sole buying at home, and sole selling abroad. For at home there is but one buyer, and abroad but one that selleth; both which is gainful to the merchant, because thereby they buy at home at lower, and sell abroad at higher, rates: and abroad there is but one buyer of foreign merchandise, and but one that sells them at home, both which again are gainful to the adventurers.

Hobbes, supra note 66, at 164.

What kind of person or personhood exists beneath the corporate veil, the legal shroud that obscures the non-existent Oz? For Hobbes, personhood itself is a mask or performance, and we all present ourselves to the world through personae that constitute personhood:

The word person is Latin, instead whereof the Greeks have prosopon, which signifies the face, as persona in Latin signifies the disguise, or outward appearance of a man, counterfeited on the stage; and sometimes more particularly that part of it which disguises the face, as a mask or vizard: and from the stage hath been translated to any representer of speech and action, as well in tribunals as theatres. So that a person is the same that an actor is, both on the stage and in common conversation; and to personate is to act or represent himself or another; and he that acts another is said to bear his person, or act in his name . . . and is called in diverse occasions, diversely; as a representer, or representative, a lieutenant, a vicar, an attorney, a deputy, a procurator, an actor, and the like.

Hobbes, supra note 66, at 110 (language modernized).

Advocating that we pursue a purely representative, aggregated existence (which would ultimately entail an ascension to impersonal genius), Emerson is interested only in the “moments in the history of heaven when the human race was not counted as individuals, but was only the Influ enced, was God in distribution.”

I Ralph Waldo Emerson, The Method of Nature, Works, supra note 23, at 210.

Emerson believed Nature spoke through him in ways that turned him into a kind of corporate spokesperson for larger forces: “Through me, God acts; through me, speaks.”

III Ralph Waldo Emerson, Divinity, Works, supra note 23, at 129.

In Hobbes’ proto-corporate conception, to be a person is already a corporate personification. Hobbes then distinguishes between personally-validated acts and authorized acts, which are essentially impersonal or impersonations:

Of persons artificial, some have their words and actions owned by those whom they represent. And then the person is the actor, and he that owns his words and actions is the author, in which case the actor acts by authority. For that which in speaking of goods and possessions is called an owner . . . speaking of actions, is called author. And . . . by authority is always understood a right of doing any act; and done by authority, done by commission or license from him whose right it is.

From hence it follows that when the actor makes a covenant by authority, he binds thereby the author no less than if he had made it himself; and no less subjects him to all the consequences of the same. . . .

Hobbes, supra note 66, at 110–11 (language modernized).

Hobbes’ disquisitions are concerned with the forms of safety and security that depend on the guarantees of the state, but also set the boundaries of what constitutes a person with rights and identity:

Likewise children, fools, and madmen that have no use of reason may be personated by guardians, or curators, but can be no authors during that time of any action done by them, longer than (when they shall recover the use of reason) they shall judge the same reasonable. Yet during the folly he that hath right of governing them may give authority to the guardian. But this again has no place but in a state civil, because before such estate there is no dominion of persons.

Hobbes, supra note 66, at 112. See also Richard Hardack, Bad Faith: Race, Religion, and the Reformation of Welfare Law, 4 Cardozo Pub. L. Pol’y & Ethics J. 539–649 (2006), for a comparison of how the U.S. government often has treated individuals and corporations in the context of welfare, gifts, oversight and public and private rights.

Today, the corporation acts as this Hobbesian unity—it is ubiquitous, inescapable and perhaps the greatest force of consolidation in history. According to Peter d’Errico, the role of the judiciary has been to turn the fiction of the corporate person from a legal abstraction into a “real” person that now exists independently of the state (and effectively exists sui generously), that could then negotiate with the state as an independent actor with all the rights of a person.

Peter d’Errico, Corporate Personality and Human Commodification, 9 Rethinking Marxism 100–01 (1996).

To sum up, Hobbes indicates that agents can impersonate anything; that all things can be personified; and by implication, that not only persons, but gods can be impersonated: as Hobbes avers, “Men Women, a Bird, A Crocodile, a Calf, a Dog, a Snake, an Onion, a Leeke [brooke], Deified.”

Hobbes, supra note 66, at 74 (language modernized).

In the corporation, collective, impersonal biography overtakes the individual life narrative. Writers such as Powers and McCarthy narrativize what Robbie Floyd-Davis documents as the corporate cooption of narrative and biographical discourses, evident, for example, in the ways corporations hire academics—especially anthropologists, sociologists, and story-tellers—to help them directly and indirectly to tell stories about them.

Davis-Floyd, Storying Corporate Futures: The Shell Scenarios, in Corporate Futures: The Diffusion of the Culturally Sensitive Corporate Form 141 (George E. Marcus, ed., 1998).

Legally created as a screen for individuals—to shield them from liability—the corporation has come to serve as a screen for the systemic displacement of the individual. That is, the corporation is socially and ontologically devised to perform tasks that individuals cannot pragmatically and economically, but also legally and ethically, pursue. It is an impersonal and pre-programmed system designed to coordinate behavior that could harm the common good. No single person is generally responsible for, or even perpetrating, the acts of a corporation, and usually no one can be held responsible; individuality is in fact systematically purged and evacuated from the system.

As intimated, writers have been positing for centuries that corporations emblematically have no souls, yet are still attributed with wills. Jameson details how the corporate form can thwart historical-materialist notions of agency and teleology: Marxists had trouble conceiving of

Some nonindividual, meaningful, collective yet impersonal agency {the mode of production] . . . still somehow a “subject,” like the individual consciousness, yet now immortal, impersonal in another way, collective beyond the dreams of populism . . . . the trust, the monopoly, the “soulfull” corporation, with its new corporate law.

Jameson, supra note 101, at 215.

In the 1920s, John Dewey noted that under “fiction theory,” which construes corporate personality as a contrivance rather than actual, the corporation has no soul and therefore cannot be “guilty of delict,” meaning liable, or perhaps culpable, for causing injury.

John Dewby, The Historic Background of Corporate Legal Personality, 35 Yale L. J. 655, 668 (1925–1926).

In the private sector that now barely can be distinguished from the public, Clay Timon, chairman of Landor Associates, the influential branding firm, insists that corporations, as brands, do have souls, and that those souls enable them to generate emotional connections with consumers.

Bakan, supra note 101, at 26.