DO CORPORATIONS HAVE RIGHTS?

© 1994 Jeremy Malcolm

Presented for the Honours degree of Bachelor of Laws at Murdoch University

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Abstract

 This paper is about the moral and legal rights of corporations in Australia. It begins by developing a conception of the corporation which can be used in analysing corporate rights, by synthesising the realist theory of corporate personality with the concept of an "organisation" from the literature of organisation theory. The nature of deontological moral rights is then analysed. It is considered whether objects or entities other than human beings are capable of bearing such rights. The fact that human beings lack access to the moral intuition of non-humans is found to pose a barrier to the recognition of the moral rights of most non-humans, but not those of corporations, because these are social entities.

The reason why corporations possess moral rights lies in the value of corporate autonomy. Corporate autonomy possesses value simply because it is a collective form of human autonomy, in which individuals voluntarily forfeit some of their own autonomy. However, the value of corporate autonomy cannot be reduced to its value to the corporations' members as individuals, because corporate autonomy can only be exercised and enjoyed by its members as a collectivity. To end the discussion of corporate moral rights, a selection of rights which corporations ought to possess is suggested.

The remainder of the paper deals with the legal rights of corporations. The position in other common law jurisdictions is surveyed before the situation in Australia is considered. Under the Commonwealth Constitution corporations possess very few and limited rights. However corporations do possess certain rights, freedoms and privileges at common law. Three notable sets of statutory provisions which protect corporations' autonomy are also outlined.

The paper concludes by considering how the gap between the moral rights of Australian corporations and their legal rights might be bridged. International law, constitutional alteration, judicial activism and statutory law reform are considered, but only the last of these is found to be a practical and effective alternative.

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Acknowledgments

I have been too arrogant to seek the advice of many who would have gladly provided it to me, and this paper is no doubt the poorer for it. However of those few I have discussed my thoughts with I must thank Dr Jim Thompson and my new employer, Stuart Macdonald. Without having met them, I would also like to thank Robert Nozick, Richard Posner, Lon Fuller and Ronald Dworkin for the inspiration and entertainment of their jurisprudence. Most of all, I wish to thank my supervisor Professor Ralph Simmonds, for the invaluable assistance he has offered me and the helpful comments and suggestions he has made.

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