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Tuesday, October 7, 2014

Undead persons, born at the crossroads of law and money

by John MacBeath Watkins

We argue about what a person is, in terms of the biology of the individual, but what if we were to apply the same standards to those undead things we call persons, the corporations?

The Citizens United decision determined that corporations are people for the purpose of free speech, in particular in spending money to influence political races. The Hobby Lobby decision granted corporations an exemption from a law because the corporation was considered to have religious views. And legislators in several states want to give a zygote the legal status of a person at the moment the sperm enters the egg.

I think these legal maneuvers reflect confusion about what a person is. A corporation has long been a person in terms of being able to sign contracts. but they are composite beings, made up of many biological persons. It is difficult to imagine them as persons in the sense of having faith, when they are likely made up of people of differing faiths, or of being politically engaged as citizens when they are made up of citizens with differing views. It is difficult to imagine a zygote having faith or political views as well.

This used to be a matter of religion, when philosophers argued about at what point a baby is ensouled. Aristotle argued that the baby did not have a soul until it laughed, which he said would happen about three months after birth. This allowed space for the Greek custom of exposing a child who was deformed, illegitimate, or otherwise found wanting, so that it died if it was not rescued by the gods or a passer-by. This possibility of rescue cleared the parents of the charge of murder.

When I saw Abby Hoffman debate Jerry Rubin, he claimed his views on abortion were shaped by his religion:

"The Jewish mother does not consider the fetus a person until it finishes graduate school," he joked.

But he did have a sort of point. We may consider a newborn a person, but we don't allow it to sign a contract until it reaches its majority at 18 years of age. And yet, we allow newborn corporations to sign contracts and dodge taxes with the best of their human competitors.

This is because the corporation is not a human person, it is a gestalt being made up of human persons who are of age to sign contracts. We think it is owned by shareholders, but as a person, it cannot be owned. Shareholders buy a right to some of the corporation's future earnings, just as gangsters used to buy a piece of a fighter hoping to gain part of any purse he won (then made sure of it by paying the other guy to go in the tank.)

If you owned a piece of a fighter, you couldn't say, "I'm a bit peckish, cut off a leg for me and I'll eat it," because you can't own a person the way you can own a chicken. Nor can a shareholder demand the corporation sell off part of itself to buy out said shareholder. The shareholder must find a greater fool to buy the shares.

But what is a human person? We certainly grant them greater rights for being human, and increase their rights as they become more mature in their judgement. In short, we regard them, as Abby Hoffman's mother did, as more of a person when they have more age and experience.

One way to explore when a person begins is to ask, at what point does personhood end? In general, our medical experts agree that human life ends when brain activity ends. Why, then, would we consider a zygote, which has no brain, to be a person?

While some who oppose abortion have claimed there is brain activity at 40 days, this does not seem to be the case. Certainly anyone with a heartbeat has some brain activity, but they would not be considered alive if they have no higher-level cognitive brain activity. One traditional notion was that the child was alive at its quickening. That would be when the mother first feels it kick, at about 16 or 17 weeks from conception.

But many thinks kick and are not human. Brain activity that includes higher-level cognition happens at about 26-27 weeks. But that doesn't mean baby is ready to sign its first contract. Becoming human involves having a human brain, and while a baby is beginning to develop one at 6 months, it hasn't yet. More important, it hasn't yet been programmed.

The real distinction between human and non-human life is the strange sort of virtual reality of the world of symbolic thought. This is part of the reason we delay responsibilities of citizenship such as being able to sign a contract or vote -- it takes a while to gain wisdom. Another reason is simple biology. Our brains mature and with changes in our brains, our judgement matures.

All of this biology is lost in discussions of what sort of person a corporation is. When does brain activity begin in the corporation? Never. Servants of the corporation do the thinking. When does the life of the corporation end?

The corporation cannot be killed by driving a wooden stake through its heart, like a vampire, or with a silver bullet. It can theoretically go on forever, never living, but undead, a creature born at the crossroads of law and money, able to corrupt its servants with rewards and punishments and make them do things they would never do as individuals. The corporation is never ensouled.

A corporation can only die if certain words are inscribed on certain papers and placed in the hands of properly sanctified public servants, perhaps with a sacrifice of money.

They are a locus of power that has its own logic, but not its own soul or conscience, or in any way its own mind. Sometimes their servants manage to gain control of them and use them to increase their own power and wealth while sucking strength out of the corporation, like a demon chained to serve a mage, who is in turn warped by the pull of the soulless thing they have exploited.

Is it any wonder that corporations, these strange and powerful persons, continue to expand their reach and their power, even in the halls of law? They are like an alien hand in the market, a part of the body politic that can act in ways we don't associate with ourselves.

And yet, our Supreme Court has ruled that these undead things are persons who act as citizens, with the same rights of free speech as someone with a mind, and the same rights of religious conscience as someone with a conscience. The alien hand has extended its reach, and gripped our most precious institutions.

Can we find the words to limit their reach, or the make the sacred documents that can confine them? Or can we find a way to ensoul them, so that they will be worthy of the responsibilities the court has thrust upon them?




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