Thinking about Company Law (I)
The gap's been while I begin to think about the nature of a company - what actually is one ?
(No, there's probably no cure, and the condition's chronic)
I'm used to thinking about Land Law in terms of the debate around (started by ?) Charles Reich's The New Property 73 (1964) Yale LJ 733* - that property is a bundle of rights (or is that Kevin Gray ?), and that what rights attach to what kind of stuff is not eternally absolute. The standard Marxist analysis is, of course, that what counts as special property varies with the economic era (not their phrase, but it'll do), and so the Marxist approach to [English - or the whole Commonwealth, I guess] Land Law is to say 'Well, of course you see Land as special. Your Land Law got going in feudal times, when Land did matter. But that's just historically [sc. economically ?] conditioned, and we can now see that it needn't be so.' This then leads less painfully to measures of collectivisation, state control of land, etc, and an intellectual justification for ignoring the protests of Messrs Locke, Nozick et al.
Now - what about applying that to Company Law ? That is, to say following Felix Cohen (Transcendental Nonsense and the Functional Approach 35 (1935) Columbia LR 809), that a company is whatever the court wants it to be, and so rather than discerning what is inherent in the concept 'company' the court is making policy decisions about what are to be the powers and liabilities of these new legal creatures - rather as Parliament does more openly in its Companies Acts etc.
Duncan Kennedy has probably done this better elsewhere, but one would then re-open the question of what are the rights and liabilities of a company, and examine the policy implications of the choices made. Two areas that interest me so far are the veil of incorporation (and of course its exceptions - especially its exceptions) and the question of companies and human rights.
*Reich's direction was to argue for/that jobs and welfare rights were/to be seen as forms of property, as important nowadays as land was of old.
(No, there's probably no cure, and the condition's chronic)
I'm used to thinking about Land Law in terms of the debate around (started by ?) Charles Reich's The New Property 73 (1964) Yale LJ 733* - that property is a bundle of rights (or is that Kevin Gray ?), and that what rights attach to what kind of stuff is not eternally absolute. The standard Marxist analysis is, of course, that what counts as special property varies with the economic era (not their phrase, but it'll do), and so the Marxist approach to [English - or the whole Commonwealth, I guess] Land Law is to say 'Well, of course you see Land as special. Your Land Law got going in feudal times, when Land did matter. But that's just historically [sc. economically ?] conditioned, and we can now see that it needn't be so.' This then leads less painfully to measures of collectivisation, state control of land, etc, and an intellectual justification for ignoring the protests of Messrs Locke, Nozick et al.
Now - what about applying that to Company Law ? That is, to say following Felix Cohen (Transcendental Nonsense and the Functional Approach 35 (1935) Columbia LR 809), that a company is whatever the court wants it to be, and so rather than discerning what is inherent in the concept 'company' the court is making policy decisions about what are to be the powers and liabilities of these new legal creatures - rather as Parliament does more openly in its Companies Acts etc.
Duncan Kennedy has probably done this better elsewhere, but one would then re-open the question of what are the rights and liabilities of a company, and examine the policy implications of the choices made. Two areas that interest me so far are the veil of incorporation (and of course its exceptions - especially its exceptions) and the question of companies and human rights.
*Reich's direction was to argue for/that jobs and welfare rights were/to be seen as forms of property, as important nowadays as land was of old.
posted by Richard Heald | 12:22:00 pm
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