Stewart on Isiksel, “A Corporate Right to Have Rights?”

Turkuler Isiksel, the James P. Shenton Assistant Professor of the Core Curriculum at Columbia University, joined us this past Friday, April 13, 2018, for the final meeting of the Sawyer Seminar on Corporations and International Law of the academic year.  Professor Isiksel began the meeting by summarizing some of the key ideas from the book proposal she submitted for the meeting, which focussed on a new purposive theory of defining corporate personhood and corporate rights.  A key backdrop to this purposive approach is recognition of the fact that compared to human beings, corporations have a distinct feature: they are established to pursue distinct purposes (in other words, they are inherently purposive “persons”).  This distinct feature thus justifies an approach to defining corporate personhood and the rights that it entails in a similarly purposive manner, differently from how we think about defining rights for natural persons.  For example, free speech rights would be particularly consistent with the established purposes of a media corporation, as compared to other for-profit corporations that do not involve the press.

After briefly highlighting the main theories of her book proposal, Professor Isiksel then took questions from the audience for the remainder of the seminar meeting.  Many of these questions concerned the practical applications of such a purposive approach to defining corporate rights.  How would policymakers decide which purposes and associated rights were truly applicable to a specific corporation?  Professor Isiksel noted that her intention was to remain at a meso-level in terms of the development of this theory, but that such determinations would certainly be deserving of careful consideration.  She suggested that adjudicators in such a system could look at a number of indicators to determine what the the true purposes of a specific corporation were, including the corporation’s charter, its day-to-day practices, whether there are indications that the corporation is “over-claiming” purposes, and whether the corporation is also imposing duties and obligations on itself associated with asserted purposes.

Another participant wondered whether a restrictive purposive approach may end up curtailing public welfare in the long term by limiting corporations’ ability to act in a more dynamic way.  Professor Isiksel stated her skepticism of the idea that corporations acting in an unrestricted manner are adding to the public good in a substantial way.  She suggested that we need to rethink the idea that in entities pursuing private interests, public gain is an automatic result (not that we necessarily reject that concept, but that we carefully consider its validity rather than treat it as a given).

Professor Isiksel also commented on some of the historical tendencies of conceptualizing corporations and of conceptualizing states.  She argued that neither framing corporations with the individual natural person as a model nor framing corporations with the sovereign state as a model are the best way to approach thinking about the corporation going forward.  We need to open up a new box or boxes to place corporations in as we consider which rights and obligations they should have and what role they should play in society.

Overall, Professor Isiksel led a great discussion that highlighted many of the overarching themes of the corporation in international law that the participants of this seminar have been focussing on over the past two semesters.

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