I am reminded of a line of dialogue from the musical 1776. After Richard Henry Lee returns from Virginia with the proposal for independence, Edward Rutledge states:
"Mr. President, although we of South Carolina have never seriously considered the question of independence, when a gentleman proposes it, attention must be paid."
This came to mind as I read my friend David Skeel's CLS Blue Sky Blog post, The Corporation as Trinity. I have considered the question of corporate personhood but never taken it very seriously. It is a doctrine for which I have very little patience. But when a scholar such as Skeel proposes it, attention must be paid.
Christian theology, as brilliantly explicated in [St. Augustine's] The Trinity, states that God consists of three different persons – the Father, the Son, and the Holy Spirit – but is a single divine being. Drawing on recent work by the theologian Curtis Chang, I argue that corporate personhood has similar qualities and that the analogy is not accidental. According to Christian scripture, the universe is a reflection of God. If this is true, the echoes – in particular, echoes of the Trinity – extend even to human institutions such as corporations. Much as theologically orthodox Christians understand God to be both one and three, I argue that corporations are best seen as having a corporate identity distinct from their managers, shareholders, and other constituents and reflecting the qualities of these constituents. ...
The Trinitarian perspective combines attributes of both the aggregate and the real entity theories of the corporation. The distinction is that the Trinitarian perspective insists that both theories are needed, rather than one or the other.
He elaborates on the argument in a paper posted to SSRN.
I mused on the nature of corporate personhood in my post The corporation is not a real entity and to argue to the contrary is "transcendental nonsense." In it, I confessed that:
I have a very practical mind. Most abstract reasoning strikes me as metaphysical mumbo jumbo. ... Put simply, I just can't wrap my head around the metaphysical abstractions required to think of the corporation as an entity--real or otherwise--rather than as an aggregate. Being unable to perform the mental gymnastics necessary to "thingify" the corporation, I am happy to find such a distinguished precedent for dismissing the effort so blithely.
The precedent to which I referred to was Felix S. Cohen's wonderful article, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935). In it, he referred to the question of where a corporation is located as "a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, 'How many angels can stand on the point of a needle?'”
To that confession I must now add that, for me, analogizing the corporation to the Trinity doesn't help much. For while it is the case that I believe in the Trinity (I give it what we Catholics call religious assent), I don't claim to understand it. I take comfort in C.S. Lewis' point that while the Trinity is something that is ultimately beyond our intellectual understanding, we can experience it. Or, as Lewis explained, “We cannot compete, in simplicity, with people who are inventing religions. How could we? We are dealing with Fact. Of course anyone can be simple if he has not facts to bother about.”
If you're more comfortable with metaphysics and philosophy that I am, however, you likely will find Skeel's analysis helpful. Conversely, if you're not, you would still benefit from reading Skeel's article. After all, I'm still trying to understand the Trinity.
In sum, attention must be paid to Skeel's article because it's a wonderful example of intellectual arbitrage. Few other scholars would be so smart, adventurous, and widely read to pull off such a feat.