Collective Subjects

Collective Personhoods

Within a dignity-based morality and a dignity-oriented law, discussed in the preceding two chapters, the question of who has dignity is obviously of cardinal importance. Specifically, does dignity attach not just to individuals but to collectivities as well? This part of the book explores some legal ramifications of this question, discussing corporate criminal liability in the next chapter and collective freedom of speech in the last. The present chapter provides a background by touching on some general considerations that bear on extending dignity to collectivities, primarily to the business corporation, the collectivity that has come to occupy center stage in contemporary life. The discussion in this Part is cast within the by now familiar bifurcated normative universe consisting of two sets of norms: consequentialist norms associated with the pursuit of social utility, and deontological norms associated with the values of autonomy and dignity construed along Kantian lines. This division is bound up with a particular, “anti-utilitarian,” conception of rights, according to which rights express and safeguard the proper respect due to their bearers by constraining the pursuit of aggregate welfare at the right-bearers’ expense. The question of a collectivity’s normative status thus splits into two, and calls for an examination not only of whether considerations of dignity apply to it but also of how it fares within the utility-oriented part of this terrain.

Although my main interest in this chapter is in the first of the two questions just distinguished, it will be helpful to first consider briefly the second: are collectivities suitable subjects of consequentialist norms? This question can be conveniently divided into two. The first, prompted by the consequentialist term in the italicized expression, asks whether it makes sense to attribute to collectivities causal efficacy and treat them as the point of origin of some objects and events. The second is prompted by norms; it asks whether collectivities are responsive to norms addressed to the collectivity as a whole and to incentives designed to back up or enforce those norms. These are foundational questions of social ontology, and writers have given different answers with regard to different collectivities. But at least when it comes to the large business corporation, an affirmative answer to both questions, an answer that ascribes to it what I will call practical personhood, crosses metaphysical lines and enjoys broad support. Though this is not the place to canvass this extensive literature, its gist as it bears on the issue at hand can be briefly indicated.

The main division is between “holistic” views—which affirm the existence of the corporation “over and above,” as the saying goes, the aggregate of its individual members and their actions—and “reductionist” or “individualist” views, insisting that an adequate account of corporations (and other collectivities) should ultimately appeal exclusively to individuals and their interactions. The holistic views differ in the level of “robustness” of the existence they claim for corporations, or put differently, in the size or nature of the gap they posit between the aggregate of individual members on the one side and the corporation as a distinct and unified entity on the other. But they all share two abstract and general philosophical tenets. One is the distinction between constitution and identity, most commonly illustrated by the difference between a clay statue and the lump of clay of which it is made: for example, the statue can be destroyed without the lump of clay being destroyed.1 For present purposes, this tenet implies that whereas a corporation is constituted by a bunch of individuals, it is not identical with them. Where does the difference come from? Here, the notion that comes into play is that of emergent properties. The world is after all full of composites with global properties quite different from the properties of their components; for example, water is wet whereas H2O molecules are not. The same holds of human composites as well. In this vein, organization theory, broadly conceived, can be seen as carrying out a program of spelling out the various structural factors that mediate between what are seen as individual inputs on the one hand, and some global features or outcomes attributable only to the organization as whole, on the other. So, for example, when organization theorists characterize formal organizations by the presence of a decision-making process, they impute the requisite information-related functions to the organization, rather than to specific individuals, because what information is gathered, to whom it is disseminated, how it is decoded, and how it is combined and brought to bear on the final outcome critically depend on the structure of the organization, on the presence or absence of particular units or positions in it, and on the relevant standard operating procedures.2 Similarly, speaking of organizational decisions presupposes the existence of some organizational interests and preferences, which lend a certain unity and intelligibility to the pattern of events we think of as corporate behavior. Portraying organizations as “intentional systems”3 possessed of “organizational intelligence”4 is a cogent way of expressing the view that organizations make decisions infused with cognitive content, that are the product of widely dispersed informational sources and diffuse individual interests and attitudes, all mediated by structures, processes, and chance, in ways that defy tracing the organizational decision to individual contributions.

Reductionists take a different ontological approach to collectivities, but their conclusions regarding the corporation’s practical personhood converge for the most part with the holists’. The most prevalent brand of reductionism, methodological individualism, insists that an account of collective phenomena in terms of individual actors is in principle possible and desirable. But the proviso “in principle” is crucial, since it is consistent with conceding the epistemological and other practical obstacles to actually performing the reduction so as to eliminate the corporation as a unitary factor independent of its individual constituents.

The conception of organizations I presented in Chapter 1 similarly converges on the same outcome. On this view, the organization is constituted by an interlocking constellation of roles, interrelated by an orientation toward some mission or goal. To be sure, these roles are occupied by individuals, each of whom is also the occupant of numerous other roles. But at least in a well-functioning organization, the individuals’ participation is dominated by their organizational roles, which thus secure a level of unity and coherence. There is room in this picture for normative control: to be constituted by roles is to be a normative subject, guided by a script and susceptible to changes in it. Orientation toward a unifying mission or goal also makes organizations appropriate objects of rewards and deprivations, similar to the kinds of positive and negative incentives by which individual conduct is often directed. Again, these rewards and deprivations have the traction that they do by virtue of the organizational goals that are embedded in the various roles constitutive of the organization.

These conclusions pave the way for the main question we raised at the outset, whether considerations of dignity apply to collectivities as well. By pursuing this question we tap into a conversation that is not for the most part conducted in these terms. Inquiries into the normative status of various collectivities are not commonly pursued by posing explicitly the question of their dignity; it is more common to raise the question in terms of the entity’s moral personhood or its rights. But the questions are equivalent. Within a dignity-based morality, to possess dignity is among other things to qualify as a primary subject of morality, and so to be the bearer of what we think of as fundamental rights. So even if no one explicitly defends ascribing dignity to corporations,5 some writers come close. They maintain that the kinds of properties I associate with practical personality—such as a capacity for unified action and for decision making—constitute people’s moral personality as well. Once it is realized that corporations display these capacities, they too must be recognized as moral persons and be endowed with the appropriate rights.6

In order to assess this conclusion we need take a closer look at the relationship between practical and moral personality. Does the one entail the other? The negative answer I urge tackles what may appear as the most innocuous link in the chain of reasoning just outlined. It is an assumption not primarily about the ascription of moral personality to corporations, but more basically about the moral personality of human beings, to whom corporations are in turn assimilated or compared. On this view, in order to provide human dignity with the supposedly requisite foundation, we must start by composing a list of traits that would provide rational support for attributing dignity to their bearers, and then inquire which entities possess these morally significant traits. We can gain some perspective on this approach by relating the corporate person- hood debate to a parallel discussion about the treatment of animals. The common concern is whether nonhuman entities possess traits of moral personhood that entitle them to moral consideration on the same basis as that extended to humans.7 And in both cases, of corporations and animals, the investigation is prompted by a similar worry: to attach distinctive moral significance to humanity is to display a prejudice, “in favor of biological persons”8 when corporations are at issue, and in favor of the species Homo sapiens when animals are.9 The concept of a person that is detached from that of a human being and endowed with primary moral significance is designed to counter the alleged prejudice. The question of who is a person is supposedly open to objective, even-handed inquiry. Self-serving human favoritism is ruled out.

Relating the corporate personhood debate to that of animal rights is instructive, since the claims and the rhetoric in regard to animals tend to be more extreme, and so help highlight some dangers that lurk in the case of corporations as well. In both cases, humanity is put on the defensive, with some troubling results. One is the pressure to extend to these nonhumans the full panoply of human rights.[1] Most of those who write in this vein balk at this conclusion and try to resist the pressure. But once the notion of personhood is detached from that of humanity, much footwork is required to avoid this slide, and the pressure occasionally prevails. A second danger is the flipside of the first. Resistance to the idea that corporations and animals should be granted certain rights, coupled with insistence that a “neutral” concept of personhood is required to secure an even-handed approach, creates pressure in the opposite direction, for it can also entail curtailing some human rights to bring them into alignment with those of nonhumans. Finally, and most alarmingly, once detached descriptive criteria replace the concept of a human being, it turns out that human beings satisfy these criteria to varying degrees, and some do not even make the moral cut at all.

To call these implications “dangers” is of course to appeal to a set of pretheoretical judgments or intuitions that not everyone shares. But those who do find these implications unappealing face a serious challenge. If certain traits and capacities I observe in Sarah credit her with dignity, and if subsequently I observe that General Motors exhibits equivalent traits and capacities, am I not bound, on simple grounds of consistency, to extend dignity to General Motors as well? The doubt I’d like to raise focuses on the antecedent of the conditional just stated. For the practical personality we ascribe to GM is indeed established by observation and study, even if what is being observed and studied is at bottom a cluster of human practices, discursive or otherwise. But ascribing to people an unconditional and inviolable worth is an altogether different idea, reached in a very different way.

To begin with, the train of thought that results in my ascribing dignity to Sarah does not start with her, but with myself, and is not driven by observation. Rather, we arrive at the idea of human dignity, our own and that of other human beings, by contemplating, in Kant’s famous idiom, the conditions of possibility of our moral experience.10 Such contemplation can only be conducted by someone who is aware of having this experience, and who wonders what might account for it. This inquiry essentially involves the inquirer’s “I,” as it is carried out in the first person and “from within.” It consists not in registering any observations one makes, but in spelling out what the “I” conducting this inquiry might designate, so as to make the moral experience intelligible and credible. The conclusions of this inquiry apply, in the first place, only to whoever conducts it. But extending them to others does not involve observation either, nor is it a matter of parity of reasoning, but rather of continuing and expanding the initial, self-regarding thought. As we have seen earlier (in Chapter 6), contemplating what I take at the outset to be the content of my inner life turns out upon reflection to imply a public space. What gives my own life definition and meaning is at a high level of abstraction what gives definition and meaning to your life as well. Since the meaning constitutive of other human lives, abstractly conceived, is the very same meaning constitutive of my own life, more concretely conceived, I relate to other human lives in the same kind of way in which I relate to my own—that is, from within. And so if what I come up with in contemplating my own self grounds to my satisfaction my own moral worth, it turns out that I have also arrived by the same train of thought at another destination: that of accounting for humanity’s special moral worth. The space of meaning revealed to me in the first-personal reflection and within which my own identity is defined, encompasses humanity as a whole, leading to the conclusion that my own dignity and the dignity of humanity are one and the same.

It may seem possible to uphold the approach against which I inveigh in Kant’s own name. Doesn’t he hold that moral personality, and so dignity, issue from a capacity for autonomy, and isn’t this capacity an empirical trait that some creatures display and others lack? We are, of course, not bound to follow Kant every step of the way, but it is important to raise a red flag against the aberrations that result in this case from following him only part of it. In holding that autonomy grounds dignity, we should be careful to distinguish autonomy in Kant’s own transcendental sense, from an empirical sense in which autonomy designates some observable human psychological capabilities, which though supposedly more advanced and sophisticated, are nonetheless of the same kind as those displayed by many other creatures, be they computers or giraffes.11 After all, one of the main points of the idiom of dignity as used by Kant is to deny that people’s value can be placed in the same metric as the value of anything else. And this relates to the further point that the role of human beings in the Kantian axiology I’ve presented earlier (in Chapter 6) is not in the first place as the objects of valuation but as its subjects, as the creators and origins of value: humanity creates a system of meanings within which facts become intelligible and evaluative judgments possible. People’s own supreme worth is not itself the product of the resulting values but their precondition: a necessary presupposition of the validity or objectivity that we claim for the normative orders in which we dwell.

To be sure, human beings do generally display the kinds of traits I’ve associated with the notion of practical personality. Once a system of categories, concepts, values, and the like is in place, it makes room for, among many other things, human beings conceived as empirical objects of observation. And as the observation of human beings reveals, they do generally display the kinds of traits we commonly associate with one or another notion of personhood. But a crucial difference between their practical and moral personality remains. Practical personality is variable and contingent, whereas dignity is unitary and categorical. People differ in their level of rationality and agency, and some display such capacities only marginally or not at all. Similar variation occurs intrapersonally as well; the capacities in question fluctuate and are occasionally extinguished, as during sleep or a coma. But none of this affects dignity and the respect it mandates. Granted, the apposite manifestation of respect is sensitive to a human being’s state and capacities. Though respect ordinarily requires some deference to self-regarding choices, for instance, this requirement is moot in the case of someone who can’t make any. But whatever the requisite manifestation of respect, the underlying value, dignity, is possessed by all human beings fully, equally, and uninterruptedly.

But even if the approach to the derivation of human dignity I advocate is accepted, a question regarding the scope of dignity remains. To expand by abstraction along the lines I’ve charted my own use of “I” would indeed encompass within the resulting universal “we” all other I-sayers. But this would still appear to leave out some human beings, incapable of an “I”-, or any other corresponding, thought. The contours of “I” and so of “we” do not entirely coincide with those of the human species. In contemplating this point, it should be first noted how limited the issue raised by this observation is. The observation pertains only to such (fortunately rare) cases as the congenitally and permanently comatose.12 Even so, this observation does present any humanist approach with a challenge, and despite many attempts to meet it, the issue persists.13 Still, three points in mitigation can be made. The first is to note that this observation does not directly conflict with the denial that nonhumans are bearers of dignity: belonging to the human species may still be a necessary condition for the possession of dignity even if it is not sufficient. Second, there is no contradiction between associating human dignity with the meaning- conception of self and the idea of human self-creation on the one hand and a biological conception of Homo sapiens as a natural kind. In making this connection I have earlier referred to Pico della Mirandola’s Oration,14 and here too we can follow in his footsteps. Pico’s Oration is a spin on the story of creation, and so he treats humanity as one biological species among others. The thesis of human self-creation is on this view grounded in a system of classification in which the extension of Homo sapiens is as naturally fixed as is the extension of Loxodonta africana. Who is a human being is a given; what she is, is not.[2] To be sure, the capacity for self-creation requires that the conception of humanity as a biological species be overlaid with another order of signification in which the organism is endowed with meaning and thus is thought of and treated in respect of its intelligibility. But attending to the meanings that distinguish humanity from other species does not undo the biological extension of the term. Think by analogy of the relationship in the case of books between the physical volume and, say, the novel it contains. Irrelevant complications aside, the extension of book in some library would be the same irrespective of whether one were to attend to the volumes or to the novels. For example, one can confidently count the books even if, illiterate, one could not tell apart Anna Karenina from The Old Man and the Sea.

And third, our responses to the marginal and exceptional conditions corroborate the view that counting their subjects as human beings dominates the way we assess their worth consistently with the conception of dignity I have presented. For consider again those who fall below the threshold of personhood due to a permanent vegetative state. Unlike a cabbage or a cucumber to which these people are implicitly and unkindly compared, the permanently comatose being fills us with horror and dread.

Why? The question is not trivial, since in the absence of sensations, one common reason for such reactions to human predicaments, empathy for suffering, does not seem to apply. A possible answer has two parts. First, it is not a misfortune for a vegetable to be in a vegetative state, whereas it is a great misfortune for John or Mary to be in this state. Failure to satisfy the conditions of personhood (whatever they are) is for a human being to fall short. But this is only half the answer, since vegetables too may come up short in terms of desirable traits that apply to them, and yet fail to elicit in us a similar response. So the second reason for our dread in the face of the comatose human being is that we recognize in her a horrible version of ourselves. Not only because we may suffer a similar fate: depending on the details of the case, the likelihood of this may be quite remote. Rather, our reaction can be better explained by the fact that the comatose human exhibits a radically degraded version of the meaning of human life, which at a higher level of abstraction is the meaning of our lives as well.

The conclusion that we cannot ascribe dignity to collectivities on the basis of their practical personhood does not, however, bring the inquiry into collective dignity to an end. There may be other roads leading to ascribing dignity to collectivities. Indeed, the conception of dignity I have presented implies such an alternative road. I have earlier argued that the respect due to an individual, call her Kim, and the respect for humanity as a whole is the same attitude conceived at the polar ends of a single scale of abstraction, and that the same respectful attitude pertains to all the intermediate levels of abstraction that define Kim’s identity as well. Just as at a high level of resolution Kim is to be respected as an individual, and at a high level of abstraction, as a person, she must also be respected as an architect, or a plumber, or a nurse. But in addition to such roles as these, Kim’s identity, and so dignity, may be bound up with some collective affiliations. And this requires that we take seriously those clusters of meaning on which she herself draws when appropriately using the plural pronoun we to convey these collective aspects of her identity. To see the point, consider such invidious attitudes as racism, sexism, and anti-Semitism. Even when addressed to a specific individual, we treat an expression of these attitudes as an affront to all members of the target community, since these attitudes address their specific individual victims precisely in their capacity as bearers of an identity shared by others, and so implicate all of them as well. As a Jew, I am affected by an expression of anti-Semitism aimed at other Jewish people, since I correctly conclude that we are offended by it. This reaction can be plausibly seen as implicitly asserting the dignity of the Jewish people, which is, however, indistinguishable from my own dignity as, among other things, a Jew.15 Put more generally, we can sensibly ascribe dignity to a collectivity when affiliation with that collectivity plays a constitutive role in the members’ identity, thus underwriting their use of a nondistributive, collective we.

But though some collective affiliations are identity-shaping, and so come within the range of the members’ dignity, others are not. In particular, the question arises whether this way of ascribing dignity to a collectivity is available with regard to the business corporation. It is not. The reason is that no individuals stand to the corporation in a relationship that would underwrite a credible use of the we locution so as to efface the distinction between things done to or by the corporation and things done to or by those individuals. For who would these individuals be? Of the corporation’s various stakeholders, only two groups, employees and shareholders, are plausible candidates. The connection to the corporation of other groups, such as customers and suppliers, is too transitory and narrow to present an even prima facie case. But even when it comes to the two candidate groups, the affiliation with the business corporation is distant and impersonal. This follows in both cases from a conception of the corporation as the instrumental entity par excellence. The defining ethos of the business corporation, an ethos that provides the avowed basis for the corporation’s structure, legitimacy, and normative claims, consists, in a nutshell, in four interrelated tenets: the business corporation is a specialized structure designed to perform a limited range of functions (producing some commodities or providing some services); by doing so it serves as a vehicle for increasing aggregate welfare and prosperity; the best way for it to attain these goals is by maximizing its profits within a competitive market, subject to some legal constraints; and this in turn is best accomplished by a primary commitment to increasing stockholders’ returns, either in the form of dividends, or more commonly, by increasing the value of their shares.

How does this instrumental conception of the corporation affect the position of the employees? To answer this question, we must distinguish a notion of the instrumental from the related yet importantly distinct notion of the functional. As I use these terms here, functional denotes “having a special activity, purpose, or task,” whereas instrumental denotes “serving as a means.”16 To speak of human beings in functional terms is to point to a pervasive and innocuous phenomenon. Pursuing various tasks provides people with meaningful projects and gives content to people’s lives. Such a functional relationship to a task characterizes many primary roles within the corporation as well; for example, an engineer working for a corporation may reasonably draw part of her life’s meaning from designing the widgets the corporation manufactures. But her affiliation with the corporation is a different matter. An instrumental conception of the corporation according to which the corporation “serves as a means” determines the nature of the corporation’s relation with its employees, independently of their position or rank: they are its resource, or, in a common and suitable metaphor, they are cogs in the machine, and so means rather than ends. Role-distance is the countermeasure. Conceiving of the employees’ corporate affiliation as a distant one, and so dampening their identification with the corporation diffuses the affront to dignity that would otherwise be involved.[3] It is, of course, in the corporation’s interest to encourage identification and so enlist the employees’ loyalty. But theirs is the mercenary’s loyalty for hire, and their use of the collective we an acknowledged contrivance or else a massive display of bad faith.17

The situation regarding stockholders, the corporation’s official owners, is different, and may appear reversed: rather than the stockholders being the instruments of the corporation, the corporation would seem to be their instrument. And this in turn might have weighty implications for identification: as a human being, I should never become part of an instrument, but an instrument may become part of me (as when a hammer is incorporated into a carpenter’s physical extension or a brush of a painter’s).18 So a stockholder might be able to allude by a use of we to the corporation as included within her extended self. But though such a relation between stockholders and corporations is conceivable, it does not in fact obtain. Due to the separation of ownership from control, stockholders can be said to own the corporation only in a peculiar and truncated sense. This is not just a contingent or adventitious matter resulting from the dispersion of stock among numerous shareholders. Rather, the separation is rooted in the same ethos I’ve outlined that provides the interpretive backdrop for the corporate phenomenon as a whole. Lack of direct control over business decisions is a device designed to ensure that the corporation’s longterm profitability take precedence over whatever any shareholder’s actual preferences may happen to be. This has a crucial bearing on our conception of the stockholders themselves as mere placeholders for a narrow, artificially contrived “profit motive,” over which, in their capacity as stockholders, they are not in charge. A stockholder is not at liberty to abjure the motive ascribed to her, or to integrate it with other values and desires that may prove antagonistic to the corporate interest. Far from being able to expand her self by means of her ownership of the corporation, the stockholder’s corporate affiliation would project a truncated and pale shadow of that self—unless, of course, what is thus projected is not the stockholder’s self at all, but a detached role that is appropriately wielded and manipulated by the stockholder at arm’s length. The view of stockholding as a distant role that does not engage the stockholder’s identity, and so does not involve her dignity either, is emphatically confirmed by the idea of limited liability, perhaps the single most important device in the mode of operation characteristic of the corporate economy: the structure of responsibility associated with the stockholder’s role signifies a strict divide between the stockholder’s corporate affiliation and her self.[4]

In summary, these comments are designed to support the following conclusions, positive and negative. Collectivities can be both consequen- tialist and deontological subjects. They are consequentialist subjects when treating them as unified agents and patients is pragmatically warranted by the kinds of organizational factors I have pointed out. But this does not make them into deontological subjects. Collectivities are deontological subjects when affiliation with them is bound up with the members’ identity so as to implicate the members’ dignity. Business corporations in particular have practical personality, and so are consequentialist subjects, but are not deontological subjects: the identities of their members do not merge with them and hence the members’ dignity does not affect them. As stated here, these conclusions form at most the bare bones of a theory concerning the normative status of various collectivities.19 The next two chapters are intended to put some more flesh on these bones.

  • [1] This is of course not to imply that our values do not extend to the welfare of animals andindeed to the inanimate environment as well; but these values belong to different normativedepartments, which are not my present concern. See note on p. 151.
  • [2] Though the two questions can become entangled, such as in respect to determinations regarding the beginning and end of life.
  • [3] That does not mean that there cannot be informal communal relationships within the corporation, but these are not relationships with the corporation.
  • [4] This view of shareholding also implies that if by democracy we mean self-rule and so a realization of human autonomy, the expression “shareholder democracy” is a misnomer.
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