Two Opposing Visions of Corporate Sovereignty

On November 3rd Joshua Barkan and David Ciepley presented their papers at the Sawyer Seminar on Corporations and International Law on corporate sovereignty and its relationship to international law. Both papers shared the same thematic emphasis on how corporate power is manifested and maintained in relation to state power, and how the two can even overlap in certain instances. However, they addressed this topic in very different ways. Dr. Barkan focused on how corporations acquire and manage land through the law, using the Bureau of Land Management as a contemporary example. Dr. Ciepley’s paper outlined the corporation’s legal relationship to the state and then sketched out three “corporate” ages of history, which can be determined through analyzing the push-pull dynamic between the two entities.

I was particularly interested to hear Dr. Barkan and Dr. Ciepley discuss what I interpreted as their opposing visions on corporate sovereignty. Dr. Ciepley’s paper (as well as many of his other works) clearly argues for the notion that corporate power is subordinate to state power. In his words, “the only thing that distinguishes it [the corporation] from a sovereign government is that is legally subordinate to one.”[1] This doesn’t mean that the corporation can’t push back against the state. Ciepley allows for such a process in his analysis; when a corporation is so successful that it manages to usurp state sovereignty in some manner, he calls it “corporate capture.”[2] In contrast, Dr. Barkan presents corporate power and state power as operating on the same plane of sovereignty, at least in the nineteenth, twentieth, and twenty-first centuries, due to the capitalist regime under which most states structure their political and legal systems. In my mind, these two conceptions of corporate power oppose each other fundamentally; one views the relationship as hierarchical, the other envisions two different sovereignties as existing parallel to one another.

Interestingly, Dr. Barkan’s response was that he didn’t necessarily view their conceptions of corporate power as opposing each other. Instead, he described corporate power as an “alternative modality” to state sovereignty—not necessarily subordinate or superior, but inextricably intertwined, a “mobius strip” of sovereign power manifested in different ways. This description neatly resonated with his paper and with the analysis presented in his book. However, I still can’t help but detect a contrast between a “mobius strip” of sovereign relations where state and corporate power are intimately related and Dr. Ciepley’s clearly articulated hierarchy of legal relations between the state and the corporations to which it grants legal power.

Consequently, Dr. Barkan’s response prompted me to reconsider how their conceptions may share more commonality that I thought in the first place, or how one could shift or adapt each model in order to create more overlap. For one thing, multinational corporations problematize Dr. Ciepley’s argument a bit. What does it mean for his model when a multinational corporation interacts with a state that didn’t originally grant its legal rights? The relationship is no longer purely hierarchical. When corporations with massive financial power interact with smaller states (think of Apple negotiating with Greece), are they operating on the same sovereign plane? Does the global market slightly even out, in some way, Dr. Ciepley’s vision of corporate power as completely subordinate to state power?

Related to this line of thought, I also considered the significance of other kinds of power beyond purely legal authority, which is what structures Dr. Ciepley’s hierarchical model of the state/corporation relationship. Although a state may birth a corporation into its initial legal existence, other kinds of power that it accrues must be reckoned with. Consider, again, enormous multinational corporations such as Apple. Is there any question of the United States dissolving Apple? What does that say about Apple’s political and financial power, its hold in other states, even if it’s original “charter” was granted in the United States? In a certain sense, this perspective evens out Dr. Ciepley’s model of corporate sovereignty. Or, alternatively, are the examples I’ve described above merely examples of “corporate capture”?

Ultimately, I’m not sure I have a solid answer to my question. I still doubt that Dr. Ciepley and Dr. Barkan’s distinct visions of corporate power can be reconciled so easily, but nor are they so distinct as I originally thought. I suspect I’ll be puzzling out the answer for the rest of the seminar.

[1]. David Ciepley, “Three Corporate Ages and the Dynamics of Western History” (excerpts of a working paper presented at the Sawyer Seminar on Corporations and International Law, Duke University, November 3rd), 3.

[2]. David Ciepley, 7.

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