Problems with Corporate Personhood?

There are problems with corporate personhood only to the extent to which we believe in the existence of separate corporate personhood. That is, do we think a corporate is an entity with its own autonomous aspects (capacities, rights, etc. – the details are irrelevant to this point), or do we think a corporation is a vessel to be filled by its directors, shareholders, and creditors? In the former, we don’t care about the personal characteristics of these individuals outside of particular “special circumstances”. In the latter, however, it matters greatly who, specifically, those individuals are, what kind of characteristics they, as individuals possess.

I am inclined to support the idea that it is the latter. Look to section 124 of the BCBCA:

Persons disqualified as directors

124  (1) A person must not become or act as a director of a company unless that person is an individual who is qualified to do so.

(2) An individual is not qualified to become or act as a director of a company if that individual is

[. . .]

(d) convicted in or out of British Columbia of an offence in connection with the promotion, formation or management of a corporation or unincorporated business, or of an offence involving fraud, [with exceptions].

This provision states (though the CBCA has no equivalent restriction) that, at least in some circumstances, the particular characteristics or properties of a director is such as to prevent that person from becoming a director. If it were true that corporations were entirely separate persons, why would the government, via statute, care about the “personality” of directors? If a corporation was willing to appoint a criminal to their board, why would the government want to intervene to prevent that from happening?

Rather, the existence of this provision suggests that, at least in limited circumstances, public policy dictates that certain types of persons cannot be directors of corporations. In turn, this logically requires accepting that corporations are not entirely severed from their individual directors – even if only symbolically – or the government would have no reason to intervene. It follows that corporations are neither always nor entirely distinct personalities, even under this statute. While they may have aspects of individual personality, there is an accepted extent to which corporations are merely extensions of individual persons occupying positions of power.

To return to the top: the fact that the individuals who make decisions in a corporate body are not without importance as individuals undermines concerns about piercing the corporate veil. While the question of control still remains ambiguous, it is not principally inconsistent with the body of corporate law for courts to find individual actors liable for their acts undertaken in the course of corporate duties.