• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


Rights and the General Welfare of Society

In response to my last blog, John commented very keenly. By the time I was finished with a rejoinder, it was as long as a post so I cut and pasted it here!

I could not have imagined a better question to my remarks than yours, John, thank you for writing.

December 21, 2010

In response to my last blog, John commented very keenly. By the time I was finished with a rejoinder, it was as long as a post so I cut and pasted it here!

I could not have imagined a better question to my remarks than yours, John, thank you for writing.

First, you are correct that nineteenth-century U.S. law bequeathed a concept of "personhood" to the concept of a corporation, largely in order to provide basic "legal" concepts of rights, such as standing to be a party to a "legal" suit. The quotation marks are annoying, but I have made them to underscore the point that all of these concepts are the constructions of a specific economic, social and political order, this one being named by historians as "modern," "capitalist," "democratic republic," "bourgeois" and even "rule of law" society.

Second, once conferred with the concept of "personhood," corporations were and are able to exercise those rights accordingly. As you point out, for example, they assert rights that accrue to them with regard to physical property (e.g. trespass) or, more contemporarily, intellectual property (e.g. copyright).

Within that framework, there is no debate. But, alas, that was not exactly my point, so allow me the opportunity to clarify. "Rights" are never absolute; indeed, they are often in conflict with one another. Just for illustrative example, think of the classic abortion debate, setting the rights of the unborn (expressed as the power of the state) against those of the mother.

In this case, the conflict arises between an older, more established set of rights that gave legal sanction to use common lands and newer rights that arose with modern, capitalist society in England originally. One example historians frequently use is the right of people to collect firewood from the local commons, a right in keeping with the public welfare feudal context of the times. With the rise of the notion of "private property," that complemented capitalism, the older "right" did not prevail when in competition with progressive notions. Jurist favored private property rights in the belief that those rights benefitted society by promoting accumulation of capital and encouraging wealth and industry.

As the early U.S. corporations began to emerge, their rights often conflicted with older kinds of rights we inherited in our Anglo-American legal tradition. One example would be the right to change the direction or quality of water downstream from a factory. An older set of rights, ones based more on the notion of the commons, held that no "one" (real or fictive person) was allowed to change the natural flow of a stream because of the adverse effect such interference would have on the rights of others downstream.

When capitalism merged with industrialization in nineteenth-century U.S. society, and corporations began to exploit natural resources such as rivers and streams, courts began to re-assess the older notion. Not only did corporations have the right to make money, courts privileged them out of the public policy belief that the creation of wealth benefited the whole of society. (If this history interests you, please know I am taking it lock, stock and barrel from the great text by Horowitz, "Transformation of American Law.")

Most people would agree that on balance capitalism and the creation of wealth globally has created unprecedented improvements from life expectancy to material expectations for so many. As noted in the previous blog, something about it must be attractive because no matter what political kind of society (one party or democratic, China or India, for example) all developing countries achieve the greatest results by pursuing some form of free market economy. The question remains, however, how to maximize welfare within the culture and traditions of the society?

In the previous blog I was not suggesting that we take away the rights of corporations but that we remember that their rights are not absolute. Moreover, a larger suite of rights might be brought back into the bold relief of our legal landscape. In short, I think that the balance has shifted too far in the corporate rights direction to always and in every case be for the benefit of the general society. The creation of wealth is still the greater good, but the distribution of it at present does not adequately serve society. We can do something about that with tax policy. So, too, in the area of free speech. If communications companies are so pervasively woven into how we communicate today -- and they are -- then as "common carriers" they have, under law, an obligation to serve the greater good. In the United States particularly, that means paying very serious attention to the principles of free speech that have emerged in our First Amendment jurisprudence over the long course of our history.

Legal precedence already exists for the concept of a "common carrier," but my point is a little deeper than what case law implies. Some values are more enduring than a singular, and quite frankly, interested, notion of "rights." General welfare of society is one of them, especially when it is that society that confers in a myriad fictive ways the notion of "rights" anyway.

Finally, this blog entry could not have been timed more perfectly given the F.C.C. vote that occurred today attempting to provide some degree of "net neutrality" as Wu defined it originally, together with flexibility to communications corporations to make money by charging for content differently, particularly in wireless communications. See: http://mediadecoder.blogs.nytimes.com/2010/12/21/f-c-c-approves-net-rules-and-braces-for-fight/?hp

John, if you are willing to share, I would be interested in your views on the F.C.C. decision.


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