Firms as Persons

This essay asks whether business firms should be treated as moral or legal persons, capable of bearing rights and duties as distinct entities. Building on earlier work describing firms as relational contracts in performance (Adelstein 2010), it considers the nature of legal and moral personality, whether and when rights and duties can be assigned independently without a balancing symmetry, and what qualifies a subject for personhood, and thus for rights and duties. It argues for an asymmetric view of the rights and duties of firms. On the one hand, because the purposeful acts of firms typically cannot be reduced to the purposeful acts of any individual participant, there is a residual responsibility for the acts of the firm after the responsibility of each participant has been properly reckoned that can only be attributed to the firm. But on the other, while it may be convenient for participants and others that firms hold rights to ordinary property, because firms are never more than instruments created by living people for their own purposes, they have no right to life or liberty. In the absence of these rights, there is no basis for granting firms political rights to such things as free speech, free association or privacy. A concluding section considers the granting of constitutional rights to business corporations in the United States in light of these arguments.