Tragedy of the Commonwealth and the Vision of Wendell Berry, The

The root of Berry's concern with the destructive effect of the "corporate person" on the commonwealth lies in his recognition that "a corporation is not a person."302 Indeed, he considers it "an abuse of a metaphor if ever there was one!"303 But in treating corporations as so-called persons, Berry protests that society "allow[s] to them the same liberation from community obligations that we allow to individuals,"304 and in conferring upon them the "rights" of individuals, we give corporations the same license to "exercise... economic power without restraint" and to share in "a political liberty implied presumably by the right of the individual citizens to own and use property."305 The problem, he writes, is that "unlike a person, a corporation does not age.... It can experience no personal hope or remorse, no change of heart. It cannot humble itself."306 Recall that to Berry, then, "A corporation, essentially, is a pile of money to which a number of persons have sold their moral allegiance."307 In sum, the corporation lacks heart and soul and it lacks humanness. Without entertaining a labyrinthine discussion of corporate governance, there are two points to make about Berry's characterization of the corporate person.

First, it would seem that his foundational objection to the soulless corporation could apply broadly to any number of bodies, institutions, and systems that do not age or feel remorse or come to realize "the shortness and smallness of human lives."308 To the extent that Berry's description is true, it is also not peculiar to businesses; after all, we can sell our moral allegiances to any number of soulless, non-human bodies, including churches, schools, and governments-perhaps even commonwealths.

Second, that we legally treat the corporation as if it were a person-the crux of Berry's criticism-might be metaphorically and legally unique, even problematic, but the historical justifications for our doing so suggest that in fact Berry's portrait of the heartless corporation may be poorly drawn and his complaint misplaced. A practice first ascribed to the Romans,309 and subsequently understood at English common law as publicly necessary and advantageous, the law assigned and recognized personal rights in corporate bodies precisely because those bodies were comprised of persons.310 As Blackstone explains:

But as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.311

Blackstone, of course, confirms Berry's depiction of the unaging, immortal corporation, and he immediately recognizes it as a legal artifice. But Blackstone's understanding of the aim and purpose of the corporation, not to mention the humanity of its several members, cuts against Berry's charge that the corporation is nothing more than "a pile of money," unable to demonstrate remorse or humility. Although, as Blackstone explains, the corporate person is artificial, it is created "in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct."312 That the corporation must be composed of individuals suggests unequivocally that corporate bodies are, at their core, personal bodies, comprised not of soulless, unfeeling automatons, but of men and women having assembled to "perform ... exercises together, so long as they could agree to do so."313 In fact, it is for exactly this reason, the human nature indelibly pressed upon the corporate body, that corporations, like governments, require systems of checks and balances-to curb the inherent human passion and its appetite.