Re-personing ethics, de-personing the corporation
In his fantastic book Who Count as Persons?: Human Identity and the Ethics of Killing (Washington, D.C.: Georgetown University Press, 2001), Jesuit ethicist John Kavanaugh argues that ethics has become “de-personed” (20). Narrative theology and virtue ethics, for example, “have been marked, until recently, by a strange absence of the subject of ethics, the one who does ethics: the person” (21). Although these approaches to ethics have challenged modern “grand claims about some timeless and spaceless ‘autonomous man,’” unmasking them as “fraudulent strategies that justify power and self-interest,” Kavanaugh insists that “not every possible model of the human person is a pretense,” and that an essential, but forgotten, task of ethics is to “investigate just what kind of being the human being is and to examine what human beings uniquely introduce to the world” in order to ground ethics in the human person (22-23).
The majority of Kavanaugh’s book goes on to make a radically personalist argument against killing human persons. The “cultural relativism” of our times, which often leads to the denial of the dignity of human persons, can only be challenged “if there is a foundation for ethics other than the heritage one finds oneself lodged in” (106). That foundation for ethics is the human person itself. “We cannot ‘do’ ethics or ‘be’ ethical,” he says, “if at the same time we negate personal existence” (107). After establishing the human person as the ground of all ethics, he formulates the primary law of ethics. Said positively, that primary law is “Affirm the reality of personal existence,” i.e. love persons and love personal existence. Said negatively, it is “Do not treat persons as non-persons. Do not reduce persons to the status of an object” (108). He goes on:
Because the very impulse to be ethical affirms the personal reality from which ethics springs—because the very placement of an ethical act is, of its essence, a ‘yes’ to personal dignity—one cannot be faithful to the moral universe in doing any act that in itself negates personhood in oneself or another. Fidelity to human personhood, the affirmation of the intrinsic value of persons and adherence to the truth of personal moral dignity, requires that we never reduce a human person to the condition of being a nonperson, that we not negate the personhood of ourselves and others, that we not treat a person as a mere thing or object. . . . To be willing to kill a human person is to be willing to kill the foundation of ethics itself. It is to disengage oneself from the moral universe (119).
As Catholics conscious, we hope, of the culture of violent death in which we live in the united states of america, we should be able to identify numerous examples of the depersonalization that Kavanaugh describes. What is more difficult to discern are the ways this confusion about the human person leads us to “personalize” things that are not persons. As Kavanaugh wrote in a previous book, in a commodity-driven society (a consumer, i.e. capitalist society) “[p]ersons relate to things as if they were persons; they relate to persons—including themselves—as if they were things” (Following Christ in a Consumer Society: The Spirituality of Cultural Resistance, Revised ed. [Maryknoll, NY: Orbis Books, 1991), 58).
We can probably identify this tendency in our own experience, regarding objects as having a dignity that belongs to persons alone. It is all too fitting, then, that the modern corporation, one of the central engines that generates this confusion of personhood, turning it backwards, is itself regarded as a person by corporate law. A brief comment by a single judge in the 1886 case of Santa Clara County v. Southern Pacific Railroad set the precedent for the legal doctrine of corporate personhood. In that case u.s. supreme court justice Morrison Remick Waite stated:
The court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.
As another John Cavanaugh (with a ‘C’) and co-author Jerry Mander write, “Few judicial pronouncements have dealt democracy and human rights a more bitter blow. This one established a legal doctrine of corporate personhood that has been used ever since, by corporate lawyers in country after country, to place corporations ever further beyond public accountability for their actions” (Alternatives to Economic Globalization: A Better World is Possible: A Report of the International Forum on Globalization, Second ed. [San Francisco: Berrett-Koehler, 2004], 288). In theological language, we might say that just as in Christian theology human persons are brought into being by a personal creator God in whose image we are made, within the consumer-capitalist society the objects/products that we treat as persons are brought into being by an entity that is also regarded, falsely, as personal.
Few americans, and few global citizens, are aware of this part of the legal definition of the corporation. The popular 2004 documentary The Corporation brought some awareness of the issue to North American audiences, asking the question: If the corporation is to be regarded as a person, what kind of person is it? With the help of Noam Chomsky, Naomi Klein, Milton Friedman, Howard Zinn, Vandana Shiva and Michael Moore, the filmmakers argue that with its anti-social personality of pure self-interest, “the institutional embodiment of laissez-faire capitalism fully meets the diagnostic criteria of a ‘psychopath’” according to the “criteria of the World Health Organization and the standard diagnostic tool of psychiatrists and psychologists.”
The position that the definition of the corporation-as-person can and should be reversed could be dismissed as the radical fantasies of the world’s Chomskys, Kleins, and Moores. But a comment last week by supreme court justice Sonia Sotomayor in a campaign-finance case shows that such ideas may no longer be dismissible, and may be seeping into the mainstream. Sotomayor stated that judges “created corporations as persons, gave birth to corporations as persons. There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”
Allison Kilkenny is right to note that it may be premature to hope for any radical changes in corporate law based on one comment, but nevertheless it is remarkable to hear this kind of view expressed. I am not aware of similar statements from within the ranks of the Powers that directly challenge legal definitions that have played such a central role in protecting corporate hegemony for over a century.
Catholics, of course, have a wealth of resources as well as centuries of deep thought and committed praxis around the issue of personhood. There are perhaps few traditions that can match the kind of reverent thoughtfulness that Catholics have brought to the question. We are known as a community for being outspoken and passionate when it comes to resisting sins against the dignity of the human person (regrettably, our attention to some human persons is not as strong as it is for others). “Re-personing” human beings who continue to be “de-personed” in this culture of violent death will always be a central vocation of Catholic Christians. A related but equally important task is that Catholics think, speak, and act out of our rich tradition of reflection on personhood by participating in efforts to “de-person” abstract entities that are clearly not persons. Such definitions are blasphemous distortions of what it means to be made in the image and likeness of the three-personed God.