If poems, as W.B. Yeats suggests, are masks–ways to act while wearing a different face than your natural one–then they have something in common with corporations. Perhaps this is why I find this legal argument so fascinating. Well, that, and there’s just something fascinating about legal reasoning in general–it’s half metaphysics, half citation of precedent. The fine details are worth reading through, but here’s the takeaway:
It is true that society treats corporations as legally distinct persons for some purposes, but this is a pragmatic choice rather than a normative judgment that human concerns do not apply to such firms. Corporations are just means by which groups of people pursue common purposes, and acknowledging the exercise of religion by for-profit corporations is by no means a category mistake. Nor, given that corporations can be formed for “any lawful purpose,” do shareholders violate some social compact by accepting the benefits of the corporate form while pursuing both profits and religious values. Of course, granting religious exemptions from otherwise applicable laws raises the risk of opportunism and can undermine important governmental policies. These risks are present with natural persons as well, however. RFRA deals with these concerns not by narrowing the definition of “person,” but instead by scrutinizing only those burdens on religious exercise that are substantial and allowing compelling interests to justify such burdens in appropriate cases. Simply put, corporate law provides no reason for excluding for-profit corporations from RFRA.
From the perspective of an interested layman, this sounds right to me. But from the perspective of a would-be philosopher, and a fan of G.E.M. Anscombe’s book Intention, I think it actually gets something important wrong: while certainly there’s no “normative judgment” involved in corporate personhood, there’s also no reason to insist on the language of “pragmatic choice,” “legal fiction,” “just means,” etc, any more than there’s reason to insist on such language when talking about human beings: after all, the legal personhood of human beings is also just a pragmatic choice, “personhood” being a specific legal mechanism we’ve decided on for enforcing laws governing relations between various kinds of entities, human and non.
If we step out of the legal framework and look at the reality it’s meant to capture, we see, to be sure, that corporations are not natural persons; they are artificial. But this does not make them somehow unreal, any more than such man-made things as tools, poems, friendships, or communities are unreal. The language of reality and unreality serves an honorific purpose, not a philosophical one–that is, it plays no role in the argument, it’s just meant to remind us that corporations are less, well, corporeal than human beings–a fact no one has forgotten, and which is rarely relevant to questions of how they should be treated. It matters when it comes to, for example, murder, because it’s hard to see what it would mean to murder a corporation. It does not matter for theft, not because we’ve specifically determined corporations to be the kinds of things that can be stolen from, but because by calling them “persons,” as it is natural to do, we’ve taken for granted that person-related concepts with clear application to corporations can be so applied.
We can see that “reality” is irrelevant when we render the argument out of legalese into philosophese:
Corporations are called persons. (It is unclear how else we would talk about them.)
“Person” is a genus, of which “human being” is the paradigmatic species. (It is unclear how else we would give the word meaning.)
Human beings are defined as the union of a specific kind of body and a specific kind of intentionality. (They are the religious, political, ethical, rational, language-using, tool-using, laughing, etc, animal.)
So to call a corporation a person is to say that it is like a human being except for certain specified differentia regarding the type of body and the type of intentionality. (From 1, 2, 3)
Corporations, when made up of religiously motivated persons, can have religious intentions. (Incorporated churches and religious schools and universities have such intentions.)
A designation as “for-profit” places no restrictions on a person’s possible intentions. (“For-profit” means nothing more than “has not forsworn profit.”)
So nothing prevents for-profit corporations from having religious intentions just as human beings do. (From 4, 5, 6)
Persons should be granted religious freedom because they can have religious intentions that should not be restricted without good cause. (Government ought to make possible the pursuit of eudaimonia.)
So for-profit corporations should be granted religious freedom. (From 7, 8)
Premises 2, 3, 5, and 8 seem to me quite straightforward, as do inferences 4, 7, and 9; I expect premises 1 and 6 to be the only controversial ones. In a legal context, both are questions of fact, and the linked article does a good job demonstrating them. In a philosophical context, both are questions of grammar.
We should admit 1 because corporations are essentially associations of persons united by common intentional actions, rather than just commons interests (we call such things communities). We have to call them persons because there is nothing else to call them; to refuse to call them persons is to refuse to talk about them. We can, of course, do so, and talk only about individuals and their actions, but if we do so it becomes nonsense to pass laws regulating collective actions. If you want to regulate the actions of a group, you have to talk about the group as the kind of thing that can take action.
We should admit 6 because it’s common sense. It would be bizarre to think that whenever a human being enters into commercial activity he does so without religious intentions, and it would be totalitarian to think that whenever a human being enters into commercial activity he thereby gives up his right to exercise those religious intentions and has to act “as if” he were a profit-seeking robot.
A strange consequence of this argument is the suggestion that corporations can pursue happiness, or at least eudaimonia. I admit that this is not our common way of speaking. But it doesn’t mean that corporations can experience physical pleasure; of course they can’t. Rather it means that there is such a thing as a corporation leading a good life; that the goal of a corporation is to seek that good life; and that a corporation is no more likely than a human being to define the good life in terms of maximizing wealth. Corporate eudaimonia may mean maximizing the eudaimonia of its shareholders, but I am suspicious of this claim also. It is probably no easier to define than the human variety.