The James Wilson Foundation on Natural Rights and the American Founding

“Corporations, Churches, Persons, and the Natural Law” — Robert Miller

Responding to Professor MacLeod, Robert Miller argues that the government should respect associations not because these associations themselves constitute “persons” with natural rights, but because the people involved have rights.

Some excerpts:

Professor McLeod says that the question before us is ‘whether churches and other associations of people have an existence of their own, prior to their recognition in positive law, or are instead mere creations of a political sovereign, entirely constituted by positive law as legal fictions.’ He answers resoundingly in favor of the former view. I think the dichotomy in the question is a false one. The truth lies somewhere in the middle: associations of human beings, whether churches, clubs, or business corporations, do not exist as real things in the world over and above the interrelated human beings involved in them, but that does not mean that such associations are mere creatures of the state that it may do with as it pleases.

“I disagree with Professor McLeod only when it comes to the ontological issue. That is, in Professor McLeod’s view, when two or more individuals agree to work together towards some goal or otherwise agree to associate with each other, there comes into existence a new reality, something over and above these individuals, something that is properly itself called a person, because it has beliefs and intentions, rights and responsibilities. Indeed, if I am reading him correctly, Professor McLeod thinks that one of the moral propositions on which he and I agree—that it would be wrong for the state to interfere with free associations of individuals in certain ways—presupposes the existence of such a corporate person over and above the individual human beings choosing to associate with each other. For Professor McLeod, if it were not for the existence of this real corporate person existing before the state recognizes that person in positive law, the corporation as created by positive law would be a mere creature of the state, with the result that the state could do with it whatever it pleased. It is this step in the argument—the move from the moral propositions to a supposed ontological ground for them—that I think is a mistake.

“In a summary of his 2014 book on Shared Agency: A Planning Theory of Acting Together, [Bratman] writes, ‘Our capacity for shared intentional activity is grounded in our individual planning capacities’ in the sense that ‘those planning capacities, given relevant special contents of the plans, and inter-relations among the participating planning agents, would constitute a basic case of shared intentional activity.’ In order words, the intentional activity of the group is, in the end, nothing more than the individuals involved having certain special kinds of individual intentions. Hence, Professor Bratman expressly says that his ‘approach is reductive in spirit since it aims to understand central cases of shared intentionality in terms of the resources broadly available within the planning theory of individual planning agents with the capacity to know about each other’s minds and actions.’ For Professor Bratman (and I, of course, agree with him here), there is no metaphysical reality in shared intentional activity beyond the individual human beings involved, their intentions, and certain relations among them.

“[A]lthough an association is nothing more than the interrelated human beings who comprise it, nevertheless these human beings have moral rights, and wrongs against the association violate the moral rights of the human beings who have joined together to form the association.”

The thing to grasp here is that such enabling statutes do not recognize pre-existing associations of human beings anymore than the law about wills recognizes a pre-existing decision by someone about how his property will be distributed at his death. Rather, just as an individual makes a legally-effective choice about the distribution of his property at his death by the very act of executing a will conforming to the statute, so too do one or more human beings form an association with the legal characteristics provided for in the corporate enabling statute by the very act of filing an appropriate document with the appropriate governmental official as provided in the statute.

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790