Paper by Sanford A. Schane
The law allows corporations to do some of the things that people do. They may enter into contracts, buy and sell land, commit torts, sue and be sued. Other rights and liabilities are denied. Corporations cannot hold public office, vote in elections, or spend the night in jail. In spite of evident differences between a corporation and a flesh-and-blood human, there are sufficient similarities for the law to treat the corporation as a person. The word ‘person’ as used in a statute will usually be construed to include corporations, so long as such an interpretation fits within the general design and intent of the act. The edification of the corporation to the status of person is one of the most enduring institutions of the law and one of the most widely accepted legal fictions.
The hypostatization of the corporation is by no means a recent innovation. As early as 1444, it was asserted in the Rolls of Parliament that ‘they [the Master and Brethren of the Hospital] by that same name mowe be persones able to purchase Londez and Tenementz of all manere persones.’ Three centuries later, Blackstone gave the following definition of legal persons: ‘Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.’ In the nineteenth century, particularly in France and in Germany, there was a flourish of interest int he nature of corporate personality—or what the French call la personalité morale. Although British and American jurists showed remarkably little concern for these metaphysical discussions, American law did not entirely escape the effects of the philosophical issues. On more than one occasion, the Supreme Court has had to determine whether, within the meaning of the Constitution, the terms ‘person’ and ‘citizen’ apply to corporations.
In this Paper, I examine the philosophical background, some of the major constitutional controversies, and the linguistic basis of treating the corporation as a person. First, I present three views of corporate personality—what I shall call the creature, the group, and the person theories. These treat the corporation as an artificial entity, as an aggregate of persons, and as a real entity, respectively. Then, I look briefly at these theories in relation to the growth of American corporations. Next, I consider the Supreme Court's confrontations with the constitutional issues surrounding the interpretation of the words ‘person’ and ‘citizen.’ By analyzing the language of the opinions, I argue for the Court's espousal of particular viewpoints on the nature of corporate personality. Finally, I turn to the linguistic grounds for the dictum: The Corporation is a Person. This expression is not a mere metaphor for the sole convenience of the law. I demonstrate that it is normal linguistic usage to talk about institutions (such as corporations) as if they are persons. The law has cleverly managed to exploit this important aspect of language.
About the Author
Sanford A. Schane. Professor of Linguistics, University of California, San Diego. B.A., 1958, Wayne State University; M.A., 1962, University of Michigan; Ph.D., 1965, Massachusetts Institute of Technology; Liberal Arts Fellow 1985, Harvard Law School.
Citation
61 Tul. L. Rev. 563 (1987)