Cummings on “A Corporate Right to Have Rights?”

Professor Turkuler Isiksel, a James P. Shenton Assistant Professor of the Core Curriculum at Columbia University, joined the Seminar on Corporations and International Law for its final class on April 4, 2018. She joined to discuss the proposal for her upcoming book and her paper titled “The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights.” Both pieces are focused on her ideas on corporate personhood and on a purposive theory of corporate rights.

She began the discussion by providing the history behind her theory and why she found the current conception of corporate personhood to be a problem. She sees the current model of attributing the rights of individuals to corporations as a way for those corporations to curtail and to abuse those rights in their favor. She rejects the current theories defining corporate personhood and crafted her own answer to the problem. She emphasized the fact that corporations are different than human beings and should not be afforded the same rights. Corporations should only be granted what rights are required to fulfill the purposes of the corporation. This purposive approach is a theory that can be used determine the bounds of the rights that a corporation should actually be attributed. Her book will describe this approach and its advantages such as allowing distinctions between corporations and acting as a check and balance on corporate power.

After describing her approach and her proposed book, Professor Isiksel was met with several questions to further define the approach with more details. Several people questioned the practicality of the approach, pulling it away from the theoretical level in which Isiksel has described it. However, Isiksel said that it was not intended to be a doctrinal test and should not replace the generally applicable tools that are in place. The theory is more to help regulators and adjudicators to think clearer on the purpose of the corporation and whether it should be given the same rights as human beings.

Attendees continued to attempt to conceptualize the practicality of the theory and asked Isikel how the ‘purpose’ of the corporation would be identified and just how rights would be allocated. To the questions, Isikel said that the private purpose of the corporation could be determined from the company charter or the company’s day to day activity. The corporation would then have the chance to provide a purpose and which rights it would like have based on that purpose. Then the state would then need to determine if the purpose of the corporation is legitimate and if they are allowed to have those requested rights. It the state’s job to determine if the purpose that the corporation is pursuing is not a form of interference. However, Professor Isikel acknowledged how her theory is still being developed and that she was not able to answer all the questions to its fullest at the current moment.

The foundation in which Iskiel’s theory stands on seems to be sound. However, she will need to perform further analysis to completely flesh out the approach, especially when it comes to exactly defining what she means by ‘purpose’.

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