Abstract
Joshua Barkan’s Corporate Sovereignty: Law and Government Under Capitalism offers an exceptionally lucid account of the modern corporation. Drawing on legal history and social and political theory, this book presents the corporation as a construct of modern governance. Barkan charts changing legal justifications for the privileges and immunities granted corporations under the law, from the early modern charters granted by the English Crown, through the development of corporate personhood in US jurisprudence. This account situates the granting of rights to corporate “persons,” most recently in Citizens United v. The Federal Election Commission, in a longer history in which the notion of the corporation as an institution legally empowered to perform a state-like role in social governance is gradually displaced by liberal economic orthodoxy that treats the corporation as a private, market institution.
The genealogical approach of Corporate Sovereignty succeeds in displacing the categories of liberal social and political ontology – state and economy, public and private. Barkan treats the jurisprudence of the corporation as an evolving solution to the problem of governance. Under mercantilism, the problem of governance appeared as the challenge of harnessing the powers of intermediary social institutions such as trading companies, on the one hand, and social services such as hospitals and almshouses formerly administered by the church, on the other. For 19th-century liberal capitalist regimes in England and the US, the problem of governance presented itself as the task of combining the economic interests of individuals and the state.
Barkan’s central thesis is twofold. First, he shows that state sovereignty and corporate power are coeval by tracing the terms of their relation in legal history; second, Barkan argues that in its efforts to augment “biopower” – society’s capacities to improve life, liberal capitalist governments practice a legal logic of the sovereign “ban.” According to this logic the sovereign authorizes legal exceptions and immunities, such as those granted by rights of incorporation, thereby creating powers of governance “on the border” of legal authority. In biopolitics, exceptional zones of “abandonment” are regularized, rendered necessary to the maintenance of life (6–7). “Abandonment” in this text refers not only to the privileges and immunities granted by law to corporations, such as limited liability for shareholders, it also refers to the populations whose protection and welfare are abandoned by legal orders that normalize such exceptions. Thus, the second thesis also suggests that the aim of maximizing biopolitical capacities under liberal capitalism justifies the abandonment of the welfare of those who do not contribute to that aim.
The bulk of the argumentative and historical-interpretive work in Corporate Sovereignty goes to unpacking and defending this second thesis. Barkan resituates the Marxist claim that the capitalist social order is unique in that it renders the “potentiality of life,” or labor power, as value in the form of capital (11). He asks how law “incorporates capital as necessary to the security of society through fictions that both expand and limit state sovereignty.” In answering this question, the genealogy of the corporation offers two insights that will help scholars theorize how productive capacities are ordered in liberal capitalist regimes. Barkan’s genealogical work makes the case that corporations are one way of directing life toward the production of value and that corporations themselves come to be seen as lives worth protecting (12).
The carefully constructed history that grounds these insights begins with formation of corporations in the English context from the early modern through the colonial period. In the seventeenth century the Crown was gradually removed from direct provision of public services and the organization of trade, and these capacities were overtaken by charities, trading companies, and corporate towns supported by the Crown through chartered grants. Charters allowed the Crown to heavily regulate the activities of these bodies. Barkan introduces the notion of corporation-as-police to denote the role of corporations in ordering the internal activities of members in line with the powers of governance set out in the charter. In the case of colonial trading companies, these powers included the power to appoint governors, govern production, and declare war in colonial territories. The state-like character of corporations in this period drew concern from early theorists and advocates of state sovereignty such as Thomas Hobbes, who suggested the state could secure its supremacy through its unique power to grant charters (37).
The practice of using the charter as a means to regulate and control the activities of corporations was gradually worn away with the rise of liberal economic and political theories and the transformations in law they informed. Until the 19th century in the US, corporations were treated as extensions of public power whose privileges of incorporation were justified by service to the public good. Barkan points to the liberalization of incorporation policy in the late 19th century as a definitive step that diminished the state powers exercised through the selective granting of charters and helped establish the corporation as an economic actor separate from the state and stockholders (57).
Within the framework of liberal governance based on individual rights, the legal fiction of the corporate person provided jurists and regulators with a unitary subject of claims of interest and control associated with individual property rights. This fiction lies behind collective ownership of property, the separation of the corporation from shareholders, and limited liability, and helped solve practical problems of taxation, jurisdiction and liability (83–4). Barkan’s legal history captures the shifting public imaginary of the corporation as economic actor. In the 1870s and 1880s, the courts increasingly protected corporate rights of enterprise, following the dissenting opinion in the 1873 Slaughterhouse Cases, which asserted individual rights of choice in contract against the state interest in creating a monopoly as a means to regulate public health (71–2).
The most valuable contribution of Corporate Sovereignty is the detailed account of how corporations came to be viewed as persons with interests and rights worthy of protection. The creation of a legal regime in the US that views corporate health as an end in itself is a powerful means of divorcing concern for economic growth from questions of the public good. On a hopeful note, Barkan suggests that the corporate form, exemplified by the original structure of the university, holds promise as a form of social organization not defined by state power or the drive for capital growth. It remains a question how the promise of the “anticapitalist corporation” relates to the problem of universal welfare under liberal capitalist governance. Such institutions aspire to be outside of capitalism, but what is their relation to the state? The proper role of state power is an unasked question behind a central concern to this book, namely, the abandonment of economically marginalized populations. State power acts on these populations; social welfare and police regimes regulate perpetual poverty and enact harsh penalties for non-compliance, as is evidenced by the massive growth in the US prison population in the last quarter of the 20th century. While the relation of the state to economic power beyond the corporation is not broached here, Corporate Sovereignty provides a formidable model for theorizing liberal capitalist power in the present.