Corporate Persons, Minds, and Bodies

In my last semester of undergrad I took a philosophy course called “Persons, Minds, and Bodies”. It was about the idea of identity persisting over time. Essentially, we looked at the question: what makes you “now” the same person as you “later”?

In simple terms, there are two camps: those who think the answer lies in having the same “mind”, and those who think it lies in having the same “body”. Either you-now is the same as you-later because of a shared mind, or because of a shared body.

To argue either framework, philosophers think up situations where our intuitions are in accordance with one theory and not the other. For example, suppose a woman suffered a concussion, lost all her memories, and gained an entirely different personality. If you think that she remains the same person before and after the concussion, then you agree with same-body identity theory. If you think that she becomes a different person, then you agree with same-mind identity theory. Or suppose your memories and personality are scanned by a machine and placed into a fully functioning robot body. Your human body is destroyed just before the transfer. If you think that robot would be you, then you agree with same-mind identity theory. If not, then same-body identity theory.

These issues, however fanciful, do come up in law from time to time. One example is the intoxication defence in criminal law. In principle, an accused can become so drunk that he did not really do the criminal act done by his body. This is in accordance with same-mind theory. In contrast absolute liability offences impute liability where there is no proof of mens rea. In other words you can be guilty for what your body does, regardless of your mental state. This is in accordance with same-body theory.

So what about in corporate law? What is it about a corporation that allows it to persist over time? The answer is relatively simple: a corporation persists so long as its corporate documents say it does. What I question is whether this is always in accordance with our intuitions.

We might, for example, consider the board of directors and superior officers to be the “mind” of the corporation. This doesn’t seem like too much of a stretch. After all, it’s this principle that underlies the “directing mind” doctrine. But if we locate the mind with the directors and senior officers, then we can easily imagine a complete corporate mind transplant. Simply replace all the directors and senior officers with new ones.

Accepting, for the sake of argument, that a corporation can undergo a mind transfer, would that create any issues for the idea of a corporation persisting over time? We might look to same-mind identity theory and say that a corporation is its mind. Therefore, a corporate mind transplant would actually be the death of one corporation, and the birth of a new one.

This would, in turn, raise some issues for corporate liability. A corporation could be found liable for an act it didn’t really do. That is, a corporation could commit a tortious act, then switch minds before being found liable. For the newly birthed corporation, this would be analogous to waking up to find yourself sitting before a court, about to be convicted of murder. Would this be fair?

On the other hand, is there anything like a corporate body? Not likely anything tangible, but maybe the articles. Like the body, the articles give the corporation its form, both empowering and constraining its interaction with the world. I think it’s also plausible that a corporation’s articles could be so radically altered so as to effectively form an entirely new corporation. Could this also have issues for liability?

In summary, I’ve probably spent too much time thinking about this when I should be doing the bizorgs assignment and studying for finals. If anyone has made it this far, thanks for your perseverance. However, I do think this is a topic worthy of discussion if we are to take seriously the idea of corporate identity.