Thursday, April 26, 2007

Harris on Transplantation of Legal Discourse on Corporate Personality from Germany to Britain and the U.S.

Ron Harris, Tel Aviv University, has posted a new article forthcoming in the Washington and Lee Law Review, The Transplantation of the Legal Discourse on Corporate Personality Theories: From German Codification to British Political Pluralism and American Big Business. Here's the abstract:
The debate on the nature of the legal personality of groups emerged in Germany in the last third of the 19th century and intensified with the controversies over the drafting of the German Civil Code. This discourse was well-rooted in German jurisprudential traditions, German historical narratives and the German political context. Yet, somewhat unexpectedly, it was imported into the Anglo-American world in about 1900. The discourse focused on three theories of corporate legal personality that were played against each other: the state grant theory according to which corporate entities were created by public law, the contractual theory according to which corporate entities were created in the sphere of private law and the real entity theory according to which corporate entities were constructed socially outside the realm of law and were only recognized by the law. This was arguably the most intense Anglo-American legal discourse of the first quarter of the twentieth century. Around the mid-1920s it abruptly subsided, leaving only traces for historians to follow. Several factors make this discourse particularly interesting: its transnational dimension, its intensity over a short and well-defined period of time, the fact that this was a mid-level theory discourse, that it had a significant historical component and lastly that the discourse and its theories were transplanted in debates in various contexts.
My focus is on the history of the discourse. I follow its course of expansion from one site to the other and map its borders. I will identify the contours and functions of the discourse in Britain and the US in four contexts: political theory, trade unions, city governance and business organization. Special emphasis is given to explaining the timing of its emergence in different venues, its transplantation into new contexts, its shifts from theory to doctrine, from academic to practical discourse, from past narratives to present concerns. A central theme of this paper is that there was indeed an initial under-determinacy in each of the three basic theories of personality, as John Dewey's critique argued, one that sometimes enabled utilization of the same theory for conflicting purposes or of different theories for the same purpose. However, each personality theory could be used only in some venues, some periods and some contexts. Each became embedded in certain meanings when it functioned in concrete historical and spatial discourse settings. Each lacked in the first place, or lost along the way, much of the manipulability that Dewey attributed to it.

1 comment:

UNM Women Studies said...

More history on the corporate personality: see my chapter on Dracula and the corporate personality in Gail Turley Houston, From Dickens to Dracula: Economics, Gothic, and Victorian Fiction (Cambridge University Press, 2005).

Review of this book by Gill Ballinger:

"Houston's final chapter on Dracula is also rewarding; whilst the Gothic resonances of this novel have been scrutinized in great detail, she brings an interesting perspective to the text through her reading of the economic anxieties it depicts. She illustrates successfully how the novel can be read in the context of the corporate personality and bankerization. Both Dracula and Van Helsing are, she contends, competing for "a complete monopoly on circulation and consumption" (117). Dracula is read in the context of the foreign investor competing, and attempting, to overthrow his competitors. Although this argument is suggestive, it would have been useful for Houston to acknowledge Franco Moretti's Marxist approach to the novel in his chapter "Dialectic of Fear" in Signs Taken for Wonders (1983), specifically Moretti's consideration of how Dracula is "a true monopolist.""