During your lecture you talked about the longish history of your book ‘The Corporation, Law and Capitalism.’ What triggered the idea for the book? And did your attitude and approach towards the topic change over time? If so, how?
The trigger for the book (which started as a PhD project in 2004) were massive corporate disasters such as Bhopal (where between 4-16,000 people died after a Dow-owned chemical plant leaked at least 30 tonnes of highly toxic gas), the rising public interest in the possibilities of international criminal law in the run-up to the second Iraq War, and the book and film ‘The Corporation’ by Joel Bakan. In the beginning I was optimistic about law’s potential to temper corporate power, reduce corporate harm and hold wrongdoers to account, but that optimism faded quite quickly. I now understand international human rights law and its related fields as ‘part of the problem’ as David Kennedy has put it. My book seeks to theorise precisely why and how law is ‘part of the problem’ of global corporate capitalism.
During your research you looked into the legal history of corporations. What were your biggest insights from this research?
The question of the corporation’s origins is rarely asked. When learning law, including company law, we merely assume it as part of the landscape, the furniture if you will, without pausing to think that the corporate legal construct came from somewhere, and was constructed by someone, for some purpose. Using Marx’s historical materialist method we understand the corporation through the socio-political, economic context in which it emerged (or was created). This gives us clues as to the corporation’s future, and how we could intervene to change this trajectory. I learnt that the corporation exists in its current legal form (with separate legal personality, the limited liability of shareholders, perpetual life and so on) for very specific historical reasons to do with the global spread of imperialist, colonial corporate capitalism. I look at corporate conquest and plunder, the trade in enslaved and resource extraction, as well as the trials of the German and Japanese industrialists after World War II, and the absence of corporate defendants in the international criminal tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court. Currently, and counter-intuitively, the struggle for ‘corporate accountability’ through strategic litigation and the business and human rights treaty, serves to create value for and legitimise corporate capitalism, despite the good intentions of many involved.
Your reasoning and your conclusions seem to be quite bold, at least for part of your audience. Will your message carry? What has been the response to your book so far?
Yes, I believe we need radical structural change in society – aka revolution! It is clear that the oppressions, inequalities, violent conflicts and destruction of our natural habitat that capitalism brings forth show that we need a radically different way to organise our society and economy, one that is based on cooperation not competition. I’ve presented on my work at many conferences around the world over the years, and I’ve given many talks like the one in Amsterdam, including at Harvard, Sciences-Po, Oxford and other such traditionally conservative places. More and more people are starting to see capitalism for the inherently violent system that it is. We need to understand law’s constitutive role in it and do something about it. This is a challenge for lawyers who are committed to their trade, their profession, their technical toolbox. It is hard for lawyers to accept that the solution to our problems may lie outside of law. At the same time, once we wrap our head around it, we’ll find we have plenty of other skills to offer the world.
Despite (or maybe because of!) being an outspoken Marxist I have been asked to teach on the role of the corporation in global society by Harvard’s Institute for Global Law and Policy at their workshops in Qatar, Bogota and Bangkok. Over the years I have met many who are starting to take a similar critical perspective on the corporation and I organised dozens of workshops leading to the publication of ‘The Corporation: A Critical, Multidisciplinary Handbook’ (CUP 2017). I also organised three international conferences on the corporation at Harvard together with Dan Danielsen with whom I also coordinate a research group on the role of law in global production networks – the environment in which today’s multinational corporations operate. There’s a deep desire to better understand – and to challenge – that institution that holds sway over so many aspects of our lives.
You hinted at the possibility of publishing another book. Would this be a follow up? And what (other) research ideas do you have for the near future?
Ultimately we need to move to a system based on cooperative, small-scale production and local direct democracy. Currently we produce way more than we need and yet masses go hungry. Around the world people are rising up against the system, just look at the mass protests in Latin America right now. At the same time people are building alternatives, and projects like Cooperation Jackson, the recuperated factories of Argentina, the platform economy workers’ struggles as well as my own comrades in local communing and mutual aid projects are a massive inspiration to me. So the next book is going to be, ‘if not the corporation, then what..?’ with lots of great stories to tell and practical suggestions to share.