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

The Sawyer Seminar on Corporations and International Law finished its yearlong discussion with Professor Turkuler Isiksel, the James P. Shenton Professor of the Core Curriculum at Columbia University, presenting a book proposal on her new purposive theory of corporate rights. Professor Isiksel, a modern political theorist, initially found scholarly fascination with the European Union and its supra-national cosmopolitan potential. However, as she began to discover the EU’s functionally orientated agenda and fervent protection of business rights, her focus shifted. The purposive theory she proposed arose from Isiksel’s dissatisfaction with the existing major theories of corporate personhood.

 

The corporate takeover of human rights discourse provides a gateway to revisit, among other questions, the fundamental nature of human rights norms, the institutions that uphold them, and the agents entitled to their protections. To Isiksel, the most important question is not, in fact, what a corporation is, but rather what it is for. While the assumptions made about the nature of the corporate entity do inevitably inform normative claims (and therefore the descriptive account of the corporation retains value), this personhood discourse leads us to lose sight of the distinctive feature of corporations. Isiksel highlighted that corporations, unlike human beings, are established to pursue a certain purpose. According to her purposive theory, these purposes should condition the legal relationships between the corporation and society as a whole. Assigning individual rights to corporations emboldens corporate power by enabling them to clothe themselves in a plethora of safe guards, designed for human beings to maximize their rights.

 

Isiksel further clarified her purposive theory by answering questions curious about the authentication of those defined corporate purposes. States’ ultimately deem the pre-determined purpose legitimate, lending this legitimacy to the authentication with its democratic stamp. Democratic polities both determine the parameters of the rights (are they necessary to the corporation’s purpose?) and then deliberate on the extent to which corporations can avail themselves of those rights (would denying those rights frustrate the ability of the individuals behind the veil to pursue their objectives?). Thus, this theory may impose a purposive check when corporations’ attempt to claim more rights than needed.

 

However, questions arose over the practical application of the theory and the determination and validity of certain purposes, such as determining profit a purpose. Purposes would be determined according to a company’s charter, day-to-day business activities, or in compromise between the state and corporation. Isiksel further explained for the audience that this theory acts not as a doctrinal test, able to replace other tools of rights adjudication, but rather as a vehicle to more accurately identify the rights attributed to each business. Given that private corporate purposes and the associated rights should not encroach on the “kaleidoscope of public interest” protected by states’ and the law, this theory would further delineate balance and boundaries between public and private.

 

Professor Isiksel finished by emphasizing the need for a new model to determine corporate rights, given the insufficiency of framing corporations using individual or state governance models. Isiksel’s developing theory fills this void and offers one such framing to conceptualize the rights of a wide-ranging yet distinct category of corporate entities.

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