Chapter 11: Business and human rights: reflections and observations
Joint stock companies are very recent institutional inventions–barely 150 years old in their prevalent form as limited liability entities with separate legal personality established under general laws of incorporation rather than by specific government order. They emerged 200 years after the sovereign state, 600 years after parliaments, 800 years after western universities and 1800 years after the Catholic Church. Like other, older institutions of largely western origin, joint stock companies have proved highly adaptable as they have grown in number, reach, wealth and power while retaining self-images drawn from their more vulnerable pasts. Corporations emerged when sovereign states appeared all powerful. They frequently grew out of businesses established by individuals and partnerships of individuals who bore the full risk of those businesses. Law imagined them as non-natural legal persons. Indeed, when I was an undergraduate law student in the late 1970s, they were studied in an elective subject called ‘Legal Persons’. It was easy to portray these legal persons with human antecedents as potential victims of abuse by all powerful governments–and sometimes unions. When the Canadian Charter of Rights and Freedoms was enacted and adjudicated in the 1980s, it was interpreted by Canadian courts to confer those rights on natural persons and corporations alike–something I suggested in 1984 to be a serious mistake (Sampford, 1986). The Australian High Court was not so generous with the much more limited rights accorded by Australian law. When that court decided by a 6:1 majority that corporations did not have the right to silence, the one dissenting judge seemed perplexed at an Australian Bar Association conference where we both spoke in 1993.
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