Ciepley and Barkan on Territoriality

Last Friday in the Mellon Sawyer Seminar, Joshua Barkan and David Ciepley came to discuss their upcoming articles. In his paper, “Property and Sovereignty: Political Territoriality and the Corporate Control of Land,” Barkan explored the connection between territoriality and sovereign power. In his paper, he used the U.S. Bureau of Land Management’s leasing of land under the Federal Onshore Oil and Gas Leasing Reform Act as a case study, observing that the BLM leases not only enabled private companies to produce oil and gas, but actively demands leases to demonstrate a commitment to do so.[1] In the seminar, Barkan spoke more broadly about territoriality and corporate sovereignty. In his opening remarks, Barkan situated his article within the broader context of “land grabbing” by corporations, especially land acquisitions in developing countries by multinational corporations. Barkan suggested that while corporations have an anchor in a territorial jurisdiction, they tend not to conform to political boundaries. In the U.S.  federal system for example, corporations are often active in interstate commerce, but the power to incorporate is reserved to the states instead of the federal government. Consequently, while a corporation may be incorporated in one state (e.g. Delaware), its actions will often affect people and commerce in several states. This arrangement may lead to spillover effects and a race to the bottom. The effects are exacerbated when we consider multinational corporations in an international, “multi-jurisdictional” space.

Ciepley discussed his upcoming paper, “Three Corporate Ages and the Dynamics of Western History.” Therein, Barkan describes the corporate form as a “governance structure,” whereby a state sovereign (or a Church) may delegate authority to a legally-subordinate but operationally independent “franchisee government.”[2] In his opening remarks, Ciepley spoke further on the ideas from his paper. Not only did he describe the corporation as a governing form, he suggested that the corporate form and the state were modeled on each other. He asserted that the first corporations were modeled on states, in that they hold their own property and have their own jurisdictions. He then suggested that early modern thinkers then modeled the state back on the corporation. Ciepley brought up the U.S. Constitution as an example of the advancement of corporate theory: like articles of incorporation, the U.S. Constitution charters the government and limits its power.

Ciepley also discussed a distinction between a “member corporation” and a “property corporation.” A member corporation is one that is set up by members to govern themselves. A property corporation – such as a modern business corporation – is not set up in the same self-governing way. A property corporation will often have a board, selected by shareholders, creating rules for employees who are not necessarily shareholders. Ciepley also tied the property corporation model back into Barkan’s discussion of spillover effects and races to the bottom. Ciepley pointed out that the property corporation model enables corporations to move across territorial boundaries. Ciepley asserts that under the member corporation model (exemplified by townships) there is no mechanism for one corporation owning another corporation. On the other hand, the property corporation model provides the mechanism by which one corporation may own shares of and control other corporations operating in a different territorial jurisdiction.

Barkan and Ciepley’s appearance at the Mellon Sawyer seminar ties back into many of the topics we have seen thus far. Their remarks on territoriality in particular have implications for our prior discussions on de facto and de jure sovereignty exercised by states and corporations. What happens if a corporation ends up outside the de facto territorial reach of a state? Ciepley would suggest that the corporation has become a state in its own right. What about corporate capture of the seas and piracy? Barkan hopes to think and write about that issue in the future. I for one look forward to thinking more about territoriality and sovereignty as the seminar moves forward.

 

[1] Joshua Barkan, “Property and Sovereignty: Political Territoriality and the Corporate Control of Land” 2.

[2] David Ciepley, “Three Corporate Ages and the Dynamics of Western History” 1.

 

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