THEORIZING THE CONSTRUCTION OF CORPORATE PERSONHOOD

A brief summary of the debates theorizing the nature of the corporate person might be helpful here. Regimes regulating corporations—and the makeup of corporations themselves as collective entities imagined to be singular—are marked by the imaginative uses of the shifting allocation of responsibilities and rights (see, for example, Appel Reference Appel2012). The corporation typically is owned by the holders of shares of its stock, who are shielded from liability for the concern’s debts, but control over its operations lies almost solely in the hands of its managers. Especially in the United States, but to a still-important extent in many other jurisdictions, including New Zealand, the corporation is conveniently fictionalized to be a legal person with many of the due process rights and legal protections accruing to human persons, a development originally intended to have solved a number of problems related to the contractual and other responsibilities of the collectivity (Avi-Yonah Reference Avi-Yonah2010).Footnote ⁴

The separation of ownership and control in corporate law gives rise to complex issues of personality, intent, and responsibility (see, for example, Fama and Jensen Reference Fama and Jensen1983). These have been classic points of interest for both legal scholars and anthropologists; they continue to serve as loci for energetic arguments over the nature of corporate personhood, corporate responsibility, and corporate property ownership (see generally Millon Reference Millon1990; Ribstein Reference Ribstein1995, 96; Iwai Reference Iwai1999; Avi-Yonah Reference Avi-Yonah2010, 1016; Orts Reference Orts2013; Blair and Pollman Reference Blair and Pollman2015). Legal scholars have tended to concern themselves with a set of central issues. One major axis of debate regards the ontological nature of the corporate person: is it “real” or is it imaginary? We might cast as one end of this axis an understanding of the corporation as an entity separate from its shareholders and holding its own rights and interests distinct from them. At the other end is a view of the corporation as an aggregate of inputs—one perhaps best understood as a mere conceptual tool for the organization of contractual behavior. A second axis concerns whether the corporation might best be considered as a natural outgrowth of basic human economic behavior or something artificial, a creation owing its existence to some state concession. The understandings on which people settle with respect to questions like these have much to do with the rights and responsibilities we attach to these organizations.

If we are convinced that the corporation is an artificial creation, we might imagine these organizations as something entirely separate from the human beings involved in running it. On the other hand, if the corporation will naturally arise from human interactions, it might be considered merely a reflex, a second-order effect of human contractual activity. While my focus in this piece is on a corporate person that is not radically problematized, there are important tracks of historical and contemporary theorization of the corporation that trouble understandings of the corporation as entity or reject it outright (see, for example, Easterbrook and Fischel Reference Easterbrook and Fischel1989; Blair and Stout Reference Blair and Stout1999; Pollman Reference Pollman2011; Blair Reference Blair2013, Reference Blair and Grandori2014).

Of central concern for both legal and anthropological scholars is the set of ways in which the legal and ethical boundaries of the corporation are asserted and negotiated, which is a question of who are owed obligations as well as what form these obligations take: “for whom are corporate managers trustees?” (see, for example, Fama and Jensen Reference Fama and Jensen1983). If we take the extension and cutting off of social relationships of debt and obligation as an actual delineation of the boundaries of the firm, this means that the shape of the firm must necessarily bear a relationship to the ways in which the corporation is governed; it means there is a need for close attention to the lived experience of firm boundary making, of the always contingent nature of the corporate form. The individuals involved in the running of the corporation construct themselves as ethically accountable people in light of their agency (or lack of agency) in shaping the way in which the corporation acts—becomes encultured—in the world. We might here rephrase Mitt Romney’s 2011 quip: “[C]orporations are [made of] people, my friend” (James Reference James2011). Corporate purpose is produced by means of this interplay of legal and popular discourse: through it, people remake the corporation in their own (complex) image as intending subject, transforming it into what is held to be an ethically, not just legally, accountable thing. In the next section, I make a close study of the ways in which these processes play out.

AN INDIGENOUS CORPORATE PERSON

This section illustrates the previous section’s assertions about cultural construction, taking as an example the Indigenously owned New Zealand corporation. This example illustrates the particularly culture-bound ways in which people’s understandings of the nature of the corporation become wound within law. It provides an example of the power of community understandings of the proper role of the corporation in shaping expectations for their behavior. In order to provide fine-scale detail on these processes, I draw here upon ethnographic data from two years of fieldwork conducted in New Zealand. This work included participant observation, structured and semi-structured interviews, questionnaires, and collaborative work.

A Maori incorporation is a form of corporate person distinct from other types of business entities in New Zealand in both legal and social terms.Footnote ⁵ This type of corporation is the product of the incorporation of communal interests in one or more blocks of Maori-owned land.Footnote ⁶ The land comes from Maori tribes and families who traditionally held it, and New Zealand law puts in place a carefully designed relationship of stewardship between these companies and those traditional landowners. Given that these companies’ primary asset will tend to be land, Maori incorporations are chiefly involved in industries directly and closely dependent upon land—for instance, agriculture, forestry, or fishing. Some Maori incorporations focus most directly upon land leasing and development: in parts of the country’s less populated South Island, Maori corporations are their region’s largest land developers and the biggest payers of property tax.

These aspects of the Maori incorporation’s operational foci are a product of New Zealand’s fraught history of dealings with the Maori people. The 1993 Te Ture Whenua Maori Act/Maori Land Act (TTWMA), an updated version of which regulates these companies, was written directly against a long history of treaty breaches, takings, violent seizures, and contradictory legal developments rendering Maori land interests mostly small, economically unproductive, and widely dispersed. Thus, the corporations are designed to provide Maori people with a means of generating profit out of their primary asset—land—while also avoiding risks to its economic or traditional value. In recognition of the trans-generational importance of this balancing act, the drafters of the TTWMA secured for owners of Maori land (land held in common by two or more Maori people) a number of protections, limitations, and privileges.

These organizations’ sale of land generally requires that the would-be seller give the right of first refusal to certain classes of prospective buyers. These classes are a set of six groups including but not limited to “children and remoter issue of the alienating owner’; “whanaunga [family; more generally, extended family] of the alienating owner” who are associated with the land according to custom; and “other beneficial owners of the land who are members of the hapu [sub-tribe] associated with the land.”Footnote ⁷ Further, the organization must obtain authorization of the sale or gift by special resolution of 75 percent or more of total shares, after which the incorporation must apply to the Maori Land Court for confirmation of the alienation. Similarly exacting processes apply for alienating land by way of long-term lease. Each corporation is charged to maintain a certain quantity of land within their asset base; although sales can be made up by corresponding purchases, some territories hold such significance to the shareholders and their whānau (family) that the corporations may never develop or sell it. Still, these are profit-seeking organizations.

The history of the Maori land corporation is quite complex, with the organizational form coming into common usage only after a series of legal fits and starts. Starting in the 1950s and 1960s, New Zealand began to put in place policies that would force “productivity” out of Maori land interests that had become (via, to be sure, the previous workings of the government) so small as to be incredibly difficult to make productive. The year 1967 saw the passage of a law requiring the sale of such “uneconomic” shares—those worth less than fifty pounds—of Maori land to other owners in the community or to the government.Footnote ⁸ The law acted as an incendiary device, sparking major protests, a rising legal consciousness in Maori people, and a determination on their part not to lose any more land. As anger brewed among Maori people, governmental efforts to render Maori land “productive” proceeded, resulting in an amendment to the act in 1974 that ended the practice of forced alienation and finally acknowledged that economic value was not the sole, or even the major, measure of the importance to Maori of their land.Footnote ⁹

Now, Maori communal landowners could choose between three options. They could leave the land left over from their long history of alienation in the care of the office of the Maori Trustee, the role of which was to undertake the treaty obligations of the state toward Maori;Footnote ¹⁰ they could manage the land with their own trusts; or they could incorporate their interests in the land and manage it as they saw fit—at least to the limited extent possible at the time. Historically, in managing Maori land, the Maori Trustee tended to prioritize the interests not of the beneficial owners but, rather, of the non-Maori long-term lessees of this land (generally commercial interests). Since options for forming trusts were also quite limiting in terms of the actions they would allow Maori to undertake, many Maori landowners chose to incorporate their interests in the remnants of their lands. Responsive to concerns regarding the difficulty of generating profit from communally owned land subject to limitations of sale, lease, and development, the TTWMA shapes the corporation’s parameters explicitly to encourage greater risk taking and, thus, the possibility of higher reward.

If this set of choices sounds quite narrow, it was—and especially so for people to whom each of the options was quite alien to the way in which they had experienced and managed land for generations. My interlocutors recalled their deep misgivings at the time regarding both the limited options presented to them and their own lack of familiarity with the structures associated with each of them. Historical circumstances meant that many Maori had long ago been forced to move away from their traditional lands; now, pushed to decide whether they should incorporate their interests, they had little information about either the land that they owned or the relative suitability of the options available for managing it. The rise in political and legal engagement at the end of the 1960s and into the 1970s meant that, by 1975, Maori people had at last gotten the New Zealand government to ratify the country’s foundational document, the Treaty of Waitangi.Footnote ¹¹ With this tool in hand, Maori were better able to advocate for themselves and to help in designing the structures of the 1993 Act—structures that would at once make far more cultural sense than previous options and help to protect their interests in land for the long term.

For as non-organic as something that calls itself a corporation might appear, it is clear that in some ways it makes perfect sense alongside the norms and values of a long-sighted and tribal people. To begin with, the corporation makes sense on the most prosaic, practical level: it resolves issues inhering in communal management, including resolving perverse incentives to sell off small shares for individual survival at the price of wider losses. It also serves to address issues of temporality: corporations, like tribes, are perpetual (Schwartz Reference Schwartz2012). Thus, the nature of the corporation coordinates with the Indigenous shareholders’ goals of shepherding and retaining value for descendants far in the future of a traditional, non-fungible, and sometimes entirely inalienable communal asset (compare Stout Reference Stout2015). Further, the corporation works symbolically and in terms of rhetoric: the corporation’s perpetuity is not just a practical necessity but also a suitable metaphor for the way in which the Maori people understand their relationship to the past and to the future. Land, very literally, is made up of the bones and body of your ancestors buried there; to the extent that it is fertile, it is due to what they have given to it. Your bones in turn will render the land productive for your descendants, forever into the future, as might the structure—the bones—of the putatively eternal corporation.

The maintenance of ties to land for these companies is a product of history and of living culture. As the shareholders in the Maori incorporation are the tribes and families who were the traditional owners of the land, they pay careful attention to corporate plans for development, demanding that the companies they own should treat particular culturally significant plots of land with particular respect. The tie to the land is also, however, a product of the managers’ individual interests for self-preservation: where companies’ leadership fails to satisfy the whānau’s concerns for careful stewardship of the land, the TTWMA has given the Maori Land Court the authority to remove them. Further, in addition to the responsibilities that the law appends to the Maori incorporation—responsibilities specific to it as against corporations under the ambit of the more general Companies Act—key to the ability of the organizations to market their difference from other corporations is their maintenance of a sense of identification with their shareholders and their land.Footnote ¹² As a result of the combination of all of these forces, these corporations’ claims of accountability are at times claims of historical and cultural continuity with their shareholders and their wider communities.

Corporations have sometimes very usefully ambiguous institutional boundaries: this is, crucially, the source of the corporate veil that shields shareholders from the corporation’s liabilities and corporations from the liabilities of their subsidiaries. Indeed, one reading of contractual theories of the corporation might be to imagine corporations as networks of responsibility that may come into resolution or become obscured at relevant moments—for example, in the face of lawsuits that call a corporation to account (see, for example, Sawyer Reference Sawyer2006). But the ambiguity of institutional boundaries does not only constrict the area of corporations’ accountability. The Maori Land Court’s extraordinary authority with respect to board makeup has incentivized company leadership to claim greater, not lesser, responsibility for the interests of the shareholders. In conflicts with shareholder demands, the response of directors and officers has tended toward the emphatic assertion of the alignment of the corporation’s actions with the history, interests, and persons of the wider whānau.

In one such conflict, elderly whānau member Tui Rangi,Footnote ¹³ along with her family, strongly objected to her corporation’s decision to sell land that, she and her family argued, was too culturally important for a Maori owned company to develop or sell off. The company, which I shall call the Tawhiri Group, is primarily known as a landlord and developer. The land that makes up most of the company’s asset base was entrusted to Tawhiri’s care by its shareholders in a particular type of legal relationship that managers and shareholders alike explicitly gloss as one less of ownership than of stewardship: while the corporation is the legal owner of the land, this ownership is at least figuratively imagined, even in the wider regulatory context, as differing in some fundamental way from more run-of-the-mill varieties. When Tawhiri made known its intent to sell the small and unprepossessing plot important to Tui and her family, its shareholders responded with outrage. While the land was not officially culturally significant such that New Zealand law would protect it from sale, Tui explained that it was significant to her—she played on it as a girl. She had memories amongst those trees. Tawhiri was supposed to be an Indigenous corporation, she argued; how could it sell such precious land?

She and her family pointed to the TTWMA’s classifications of land and to smaller-scale restrictions on the behavior of Maori incorporations based on whānau expectations. In addition to the TTWMA’s legal classifications, corporations evaluate land for its suitability for various corporate priorities in terms of its own policies. The company had developed policies and procedures for determining the land’s cultural significance, or its lack thereof, to the whānau. Managers worked to ensure that these processes were thorough and carefully designed, combining prosaic processes—mapping the territory at issue, for instance, and collecting families’ oral histories—with ones more poetic. Managers walked the land in question with respected elders and a matakite (a person skilled in spiritual intuition), seeking from them advice, bits of memory, and a sense of the spiritual heft of the place.

After this examination of factual and spiritual meaning, the corporation’s land group weighed these inputs according to the strictures of a set of development policies that lay out intricate parameters upon which the land should be graded, used, and perhaps alienated. The company distinguishes “highly culturally significant” land that will not be sold (locations of historical or spiritual significance to the whānau, such as burials, battles, or famous meetings); varying degrees of less culturally significant land, the potential sale of which must be carefully vetted; and culturally insignificant land with which the company may deal with relative freedom. Although the sale of this land remains subject to the statutory limitations on alienation, the corporation will have a markedly less difficult time securing from its shareholders the passage of the special resolution to sell land that has, or has successfully been framed as having, no cultural significance. These policies attended to the statutory requirements of the TTWMA, but they were meant simultaneously to reflect particular feelings around the traces drawn by the past.

The dispute at hand thus concerned nothing less than the credibility of the company’s pronouncements regarding cultural values. The board withdrew its recommendation to sell Tui’s land—not because it could not get the votes or because any law required it but, rather, because, as the board members told me, they recognized a juncture at which their legal and regulatory ability to sell the parcel threatened the corporation’s legitimacy in the eyes of the shareholders, culturally, as a Maori organization. While this example is useful for the way in which it shows how the Maori incorporation negotiates connection to, and identity with, the Maori tribes and families who make up its shareholders, it also shows the workings of, and the effectiveness of, the cultural norms of its constituents.

While the basis of the TTWMA was in protecting Maori land and growing its economic value, its processes for meeting these goals, in practice, have run precisely counter to the processes most familiar to Maori. Key to hui (the community gatherings that traditionally form the central means by which Maori groups make decisions) is painstaking discussion and, importantly, the generation of consensus. In conflicts such as the one I describe, Maori community members reproduce aspects of hui decision making, voicing opinions and preferences in opposition to the positions of managers. For them, the point of their pushback is not solely the advancement of contrary points; as important for them is the desire that leadership might engage and, in the crucible of debate, come to a resolution that at least approximates consensus.

Decades of corporate law orthodoxy render unremarkable the notion that the separation of ownership and control is central to the being of corporations—central to their very personality. Yet even the best-intentioned management actions may become entirely illegitimate to the Maori communities they are meant to serve. Further, despite providing underlying owners with a means to contest management activity that they find harmful, irresponsible, or illegitimate, the Maori Land Court’s ability to intervene in such conflicts and even to remove directors has replicated this very incompatibility between traditional and Pakeha (non-Maori) forms of legitimacy. Here again, the law has favored hierarchical processes, de-emphasizing the far flatter ones that have organized Maori prosperity for centuries and that, changing and morphing as traditions do to suit the needs of the present, have retained enormous force and value to Maori. Instead of enhancing Indigenous self-determination, the TTWMA has forced Maori landowners into a configuration that seems not merely alien but also perhaps even anti-Maori.

But to assume this mismatch to be unworkable—to imagine that the corporation is fundamentally incompatible with Maori tradition—is a mistake. Maori people, after all, met the very first European settlers with adept entrepreneurialism, and economic adaptability is a hallmark of the way in which economic and social rights developed in New Zealand. No “clash of cultures” discourse rules here; consensus does.

Legislation passed in August 2020—the Te Ture Whenua Maori Amendment Act 2020 (TTWMA 2020)—has made a substantial revision of the 1993 Act that shapes its original parameters into a form more responsive to, and respectful of, Maori norms, traditions, and conceptions of authority and legitimacy.Footnote ¹⁴ The law now affords Maori groups far more control in designing the structures and processes through which they will manage their land, foregrounding consensus and tikanga (custom) as bases for decision making. Norms particular to communities assume a more central place in the mechanisms of law, changing it even as those preferences, expectations, and traditions, never frozen in time, move through their own natural growth and change. People actively use the corporate form to negotiate their own understandings of themselves and the corporations as socially connected and dependent people, both shaped by responsibilities to the people and communities around them. In the next section, I move further into ways perceptions of the purpose for, and the meaning of, the corporate person derive from discursive communities’ sense of the purposes and responsibilities appending to members of that group.

ENCULTURING THE CORPORATION

The examples in the previous section illustrate two points. First, they show the particular set of ways in which the nature of these corporations’ claims to represent or map onto their Indigenous shareholders shifts. Companies do not merely contract the bounds of such identification to avoid claims of the necessity of institutional responsibility, they also, at times, expand those boundaries in unexpected ways. Second, they show the diverse ways in which varied constituencies, including stakeholder communities, use the law of corporations as a tool to negotiate these configurations. What can these contingent, fuzzy, ever-shifting, ever-changing relationships mean for our discussion of person and purpose?

Consider how the Maori corporate person is entangled in issues of representation, values, authenticity, and Indigeneity. The corporation is responsible to and for the interests of tribal people and tasked with the retention and growth of a partially inalienable asset base and, thus, by the vicissitudes of law and the demands of its shareholders, held responsible for a standard beyond that of other corporations. The actions of the corporation seem to become bound up in the way the shareholders imagine a person representing them should behave. This understanding of the corporation as representative of the community allows people involved with it to articulate demands or justifications for desired actions such as social and environmentally responsible practices.

In the case of the Maori incorporation, corporate actors and members of the societies within which they are embedded work to contract or extend networks of relation and responsibility between themselves; they undertake these negotiations by means of a number of contextual and audience-specific discursive shifts. The notion of what this corporate body looks like—where its boundaries are and should be—is debated at every step, in every encounter. As my New Zealand informants plan the Maori incorporation’s future, these debates center explicitly on ontological questions: “Under what circumstances, after what changes to values and purposes, do we stop being us?” To what extent does the legal form of this organization, and its connection to these tribes, produce a Maori legal person, acting from Maori purposes? My interlocutors’ choice to frame these dilemmas of purpose and legal personhood as they do is important because it highlights the ways in which all of this actually is, finally, an ontological question: what is the corporation? What is it for? These are questions that go to the very nature of the firm and of the corporate subject.

This understanding of corporate ontology and purpose arises out of something like an alchemy of the nature of the legal person in question, local law, and cultural mores. The “Maori corporate person” is not a pure legal fact but a narrative woven out of these threads and against a loom of history and memory. When philosopher and critical theorist Walter Benjamin (Reference Benjamin, Arendt and Zorn1969) described the “chronicler” as one who tells the story of history—one who conveys an experience, an encounter with the past, a past that is always in bits moving against each other to form new images—he touched on something that speaks to these points.

Benjamin contrasts his conception of a “chronicler” to that of the “historian” who takes the past as whole and done; to the chronicler, the past is not neatly inscribed in, or necessarily amenable to, linear narrative. The chronicler looks backward to reclaim and make new things out of what might look like rubble—echoes, bits, songs, images, designs—moving between them to make the past meaningful and thus to make meaning in the present. The teller of the tale, and the present they address, affects not just the way in which the story is told but also the content, the shape, the feel, and the aesthetics of the story. History, in Benjamin’s telling, while having been written by the winners, is not a thing that can rightly be told “as it was.” It is told as today is, as is relevant to the concerns of those who have survived it and seek to use its shards so as to do more surviving. This is a past that is never past—that needs to be, and is, broken open, broken up, with bits of it retrieved, re-examined, and reinterpreted for the purposes of the present, many and varied and conflicting as they may be. It is the challenges faced in the present that are important to the tale that gets told. A thousand different repetitions and a thousand different views contribute to this project, this redemption of the bits of things mostly invisible to history.

In New Zealand, bits seized from land claims—old maps and old letters but also old tales and spiritual intuitions—are woven together to form a new chronicle, a new attempt to illuminate the recesses and ellipses of history, out of which new tales of the self (of Maori people, of tribes, of the Maori incorporation) have arisen. The presence of these bits “simultaneously record[ed] a certain apparent continuity and emphasize[d] its loss from memory” (Anderson Reference Anderson1983, 204). A similar rearrangement of distance and nearness, remembering and forgetting, recreates the corporation as a particular kind of moral person, arising out of a particular kind of temporality: “Out of this estrangement comes a conception of personhood, identity … which, because it cannot be ‘remembered,’ must be narrated” (Anderson Reference Anderson1983, 204).

As anthropologist Carol Greenhouse (Reference Greenhouse1996, 1) writes in A Moment’s Notice, “time articulates people’s understandings of agency.” Time is social and plural and political; official discourses and temporalities might be seen as part of the management of diversity in the modernist state. Greenhouse highlights the law’s tendency toward the linear notions of time and the simplified, compressed narratives that accompany them. In legal narratives, actors are, or are not, certain types of people; legally cognizable events (such as “larceny,” “treason,” or “breach of trust”) did, or did not, happen; and a number of different perspectives must necessarily be flattened out into “the facts.” Further, as Susan Coutin (Reference Coutin1998, 125) asserts, “the ‘character’ of a narrative must remain constant if a narrative is to be institutionally comprehensible.”

Perhaps what is most interesting in Maori tribes’ dealings with the Maori incorporation is not necessarily the endpoint reached in these negotiations but, rather, the contingent, shifting figures formed in the crucible of the debates around them the way these issues circle about the kernel of the past. The processes by which these figures take their forms are, in the words of Susan Silbey and Austin Sarat (Reference Silbey and Sarat1987, 169), “not entirely knowable”; they are processes necessarily full of “great silences and omissions; many voices are unheard, not well understood, even subjugated.” As Silbey and Sarat remind us, the comportment of events, and the various claims of these comportments as “the facts,” does a great deal of social work. The social world may be indeterminate, but its contingent meanings very certainly mean something while they hold their form. It is the narration that pauses this glittering and shifting array; it is in telling the tale that people create new encounters with the past and “blast open the continuum of history” to make of the present a place to stand (Benjamin Reference Benjamin, Arendt and Zorn1969).