Does the ontology of corporations matter for corporate rights? Much of the philosophical literature on corporate rights focuses on whether corporations are real entities, aggregations of individuals, or fictions to which rights or other entitlements can be ascribed. We argue that this focus is misplaced. Whether corporations have rights, and the sort of rights they have, is a question of moral theory. It is not fundamentally a matter of ontology, as F.W. Maitland thought, or a matter of legal or moral semantics, as H.L.A. Hart once argued. The going moral theory, not conceptual requirements or explanatory criteria, determines the conditions a corporation must satisfy to have various rights and duties. We argue that this truth is independent of the deontic, consequentialist, or hybrid character of the moral theory. This paper defends three claims. First, the ontological status of a group as an intentional agent is neither necessary nor sufficient for its moral status or entitlements. A moral theory in principle could recognize groups that are not intentional agents, and a group’s existence as an intentional agent does not by itself require moral recognition. A moral commitment to corporate rights and duties is therefore not determined by the indispensability of groups in explaining group behavior. Second, the substantive claims of a moral theory (understood broadly) determine the conditions for assigning rights and duties to corporations. Third, this moral conception of corporate rights has both legal and moral implications for the treatment of corporations.
We thank Roy Kreitner, Shay Lavie, James Nelson, George Rutherglen, Fred Schauer, Richard Schragger, and the editors for comments on an earlier draft of this paper.
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