True to Form: Business "Corporations" Support Same-Sex "Marriage"

Inorganic Associations for Inorganic Unions

Here's a way to re-frame some of the ideas of my last post on appropriate corporate forms and the current anti-family structure of corporations law: The principles of modern corporations law justify same-sex marriage. This may either weaken Christian resistance to same-sex marriage, if we accept these principles, or force us to reevaluate the forms of modern corporations law.

The Basic Argument: just as corporations law grants businesses associations corporate status regardless of whether there is an underlying real, moral group entity, so too same-sex marriage law declares indifference as to whether a same-sex marriage is a real moral union. Both forms of legal association, business corporations and same-sex marriage, grant associational privileges without respect to an underlying real moral union. They both rely on the same commitment to legal constructivism, i.e. the idea that the law is permitted to privilege a social form without respect to a real underlying moral arrangement. In the case of business corporations, the replacement of the family as the primary mode of economic life has had massive effects as amoral anonymous business corporations were privileged over families. Homosexual "marriage" simply applies to marriage law the constructivism already enshrined in corporations law, further leeching away the privileged position of the organic family.

Consistency in their Principles

Consider how the defense of Christian marriage rests on the assertion that what is a real marriage should matter for law. In their well-known paper, What is Marriage?, p. 250-1, Prof. George, et al., recognize that normative evaluation of a legal institution in se assumes that it is not a pure construction of law: "First, marriage is not a legal construct with totally malleable contours—not 'just a contract.' Otherwise, how could the law get marriage wrong? Some sexual relationships are instances of a distinctive kind of relationship—call it real marriage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement ... the state cannot choose or change the essence of real marriage; so in radically reinventing legal marriage, the state would obscure a moral reality."

As there are real marriages, so there are real, organic corporations, e.g., people who have moral relationships that unite them into a single body with justified corporate powers and responsibilities. To use a classical example, an army, as opposed to a mob, is not just a crowd of individuals who happen to be together. An army is a real group with true moral relationships among its members, usually formed by oaths and mutual submission to military leadership, that justify treating it as one for many purposes, e.g., in attacking an individual member of an opposing army when the leadership of that army has declared war, though the individual has done nothing, or in imposing responsibility upon it for the acts of its members in violation of the laws of war. Another example: the Roman Catholic church, for historic and factual reasons, is regarded as a real, organic corporation under international law; it is not incorporated by any government, but it is afforded legal personality because it is considered a real group entity. In the Bible, nations are frequently treated as real corporate entities and they are treated this way under international law as well. The family is actually the central example in the Bible of a real corporate entity; thus, the actions of family heads, in acquiring property or making covenants or sinning or acting in faith, impact members across generations.

Under modern business corporations law, however, the absence of any real organic corporate existence is treated as irrelevant to the issue of whether the law should treat a particular business as having a corporate existence. Incorporation of a business commences and endures without reference to the existence of any real, social entity or moral relationship among shareholders. The shareholders of Exxon Mobil Corp., for example, lack any social relationship among themselves. With respect to one another, they are merely mutually anonymous contributors of capital to an enterprise from which they expect profit without bearing any responsibility for business operations. They have no real social unity and assume no real mutual social responsibilities. Nevertheless, modern corporations law gives associational privileges (legal personality, limited liability, formation facilitation, dispute-resolution support) to these shareholders.

If Christians affirm that corporations law may grant associational privileges regardless of the existence of an underlying moral group entity, then the same principle would support granting associational privileges to same-sex marriages regardless of the absence of a real marital union. The arguments would shift to the purely utilitarian considerations of constructing or not constructing such forms. By contrast, we may hold as Prof. George argues for marriage that "the state cannot choose or change the essence of real [corporations]; so in radically reinventing legal [corporations], the state would obscure a moral reality." In this case, we would believe that modern corporations law obscures the real corporate entities that should have our allegiance, e.g. the family and nation.

United for Homosexuality

Modern business corporations have joined the battle against Christian social forms. Fortune 500 corporations overwhelmingly fund and support homosexual activism. They rightly view the homosexual lobby as their natural allies in social constructivism. Christians should consider carefully whether the principles of corporations law with their massive social impact on how wealth and power are distributed away from natural communities of love, are consistent with the patterns of love to which they are committed. Having entrusted vast power to artificial corporations, Christians now find that those engines of efficiency are arrayed against the most basic institution of social life.

(Those interested in Christian legal theory may also note that there is a distinct idea of natural-law jurisprudence here. Instead of emphasizing natural-law jurisprudence in terms of our ability to rationally know what the primary norms of law should be, we might instead frame a commitment to natural law as anti-constructivist. A natural-law jurisprudence would insist that law should be made in relation to actual moral relations, whether known rationally or not, rather than creating artificial relations through force. Natural-law jurisprudence thereby loses its heavy epistemic commitments and becomes an ethic of law making favoring respect for naturally occurring organic relations over artificially created ones.)

Love, Law and the Christian Understanding of Corporate and Intellectual Property Law

I am just returning from Pepperdine University Law School and participating in an excellent Nootbaar Institute conference on Love and Law. It was organized by one of the most seminal figures in the development of contemporary Christian legal theory, Prof. Robert Cochran, whose significant scholarship and wonderful graciousness are in even competition. There are a number of excellent papers available at the link.

Among others, I heard excellent papers from Profs. Bainbridge, Johnson and Berg on how Christian love informs corporate and intellectual-property law during a session which was engagingly named "Finding Love in Law Where You Would Not Expect It." (Of course, as Christians committed to the idea that love is a summary of the law, we would expect love to structure all legitimate norms but we might have a hard time imagining how.)

The papers focused on how various structure of corporate or IP law might be more or less loving. For example, we might want to increase or decrease the duty to "love" of directors or officers with respect to shareholders by imposing liability for greater or lesser degrees of selflessness upon them. Or, we might want to structure corporations so that the directors owed duties of love not only to shareholders but also to other "stakeholders," e.g. employees or local communities, etc. With respect to IP, we might want to structure IP so that the distribution of the benefits of innovation were more easily available to the poor, e.g., through better defined fair use law or broadened TRIPS exceptions for developing countries.

That is, the papers -- quite worthily -- compared how one form of IP or corporate structure might compare with another in terms of better encouraging or reflecting love.

But, in my estimation, they failed in the more revealing project of considering whether these legal forms themselves replaced other forms based more on love. It is not enough to ask whether one form of corporate law or another is better at reflecting love; we must ask, e.g., whether corporate law as opposed to other laws of association is better at reflecting love.

Consider: before the rise of the modern corporate form of association in the 19th century, the dominant form of association for economic activity was the family, a community of love. Around the natural love of the family and its recognized rights of succession and mutual spousal and parental-filial duty, almost all ownership of capital and economic cooperation was organized. Farms were family farms. Businesses were family business.

This buttressed the family by rewarding family formation/maintenance with a superior means of producing wealth compared to the associations available among strangers. (e.g. contracts and partnerships.) With the rise of the business corporation, the family as a legal association for economic purposes was heavily disadvantaged in comparison with this unnatural form of association, a forms not based on the natural love arising among men, women and children.

Before the 19th century, the law did not facilitate strangers aggregating capital for their own private advantage; previously, it took a special legislative act, based on a determination that there was a public advantage in a particular activity, for shareholders to gain the right to use the corporate form. But after that, corporate law created this new universal form of association of shareholders with many advantages over the familial form, especially unlimited size and duration. Unlike the family form of association which is limited to one man/woman pair and their children, the corporation can include infinite numbers of shareholders and never dies. When a family member dies, he faces inheritance taxes and other expenses related to succession. But, corporations have no necessary limitations on duration and across time, never have to pay taxes on the succession of capital across time.

We should ask not only what is the best way to structure corporate law so that it is fair or loving or efficient with respect to its own members. We should also ask whether we want to center economic activity around anonymous associations of shareholders, aggregating capital without responsibility for management of corporate activities or interest in anything the corporation does except producing profits.

Rather, would we not prefer for economic activity to be centered around associations of husbands, wives and their children who have connected their lives in naturally loving patterns and taken responsibility for certain assets and activities? Shareholders do not love each other; husbands, wives, parents and children naturally do. If we really want to promote love, we ought to equalize the family form as an association for economic purposes in comparison with the advantages and privileges doled out by our government to societies of anonymous strangers. If we really wanted love, we would make the family the primary holder of property -- as it was in the law of Moses.

Similarly, the idea of copyright and patent law is to promote certain forms of intellectual creation by granting a limited monopoly over certain uses of the work or invention. This monopoly is believed to stimulate creation because of the economic incentive it provides when the monopoly is exercised to force those desiring the work to pay for a license. Patent and copyright law have indeed stimulated the production of new works, like Hollywood movies and profitable pharmaceuticals.

But the extra works created are those that are stimulated primarily by a special economic incentive. Those who generate works for love, love of art, love of science, love of the subject, love of their community, love of God are now competing with those whose love of art, science, God would have been inadequate to generate the work without the added economic incentive of IP law. When men could not make money from creating art or new inventions, the works and inventions created were those that men made for the love of the activity itself. Of course, this was never pure; men worked for glory, patronage etc. But it was purer. The law did not seek to whip up a crowd of those writing solely for the sake of money. The work of the altruistic artist or scholar stood in a less crowded field and hence was more prominent. The altruist today must not only create his work but pay to fight for attention among the purely mercenary.

In both the cases of IP law and corporate law, we are dealing with forms of law that have produced marvelous results. But to understand them, we should understand that they are forms which create competitors to activities based more on natural love. This may not mean that they should be abolished, but it does mean that we should do more to compensate for the negative externalities falling on families and altruistically motivated creators.

That is, it would mean that if we care about love.