It’s a commonplace in economic, sociological and legal scholarship to assert that the corporation is a legal fiction (e.g. Carruthers and Ariovich 2010: 122 for one of literally hundreds or thousands of examples). Corporations, we are told, are granted by the law certain rights, obligations, etc. – the ability to own things, to issue debt, to sue and be sued, to commit crimes. The law determines the bounds of the corporation, and constructs the things inside those bounds as a corporate person. Recent debate at the Supreme Court has questioned this idea of the corporation-as-individual created by the law (see Sotomayor’s comments) but has come nowhere near overturning it. Beyond the law, we can imagine also that corporations are social facts or social constructs – McDonald’s is both a set of legal claims and also a set of meanings (branding, American cultural imperialism, etc.), relationships (supplier, contractor, employer, etc.) all of which combine together to make McDonald’s into something real.*
Here’s the thing: Individuals are equally sociolegal fictions**. This claim goes against our everyday experience which suggests that individuals are obvious, pre-existing, and pre-social. Sometimes claims that go against our everyday experience are simply wrong. Other times they are profoundly important because they challenge the basis on which our experiences have been constructed (cf. Scott 1991). I want to convince you that this claim is in the latter category.
What does it mean to say that the individual is a legal fiction? It means to say that the bounds of the individual – what’s in and what’s out, what kinds of bodies/minds/cells/molecules count – are determined in part by the law (in conjunction with other kinds of political and technical arrangements) and are not trivially determined by some uncomplicated or obvious character of biology***.
Let’s knock one example out right away: DNA and genes. In the year 2010, there has grown a tight linkage between our DNA and our notions of self. We talk a lot about genetic determinants of behavior, of disease, even of politics. But DNA doesn’t map one to one onto our notions of identity and self. To start with, tons of the cells in a human body have different DNA – all the bacteria and parasites that both make us sick and also make us tick. Second, as weird as it may seem, a significant fraction of people carry two different strands of “human” DNA, due to something that happened in the womb (like twin absorption). Aryn Martin (2007) has an excellent analysis of how these people were made into a new human kind – the chimera – and the consequences of this kind for (among other things) courts and sporting organizations that relied on the one person – one DNA linkage. What do we with someone with two different kinds of DNA? Do we revoke their singular personhood? Or do we search for a new way to define and unify the individual? I think we shoot for the latter, but either is theoretically an option. The bounds of the individual are malleable.
I might have started off with too messy an example of the biological indeterminacy of the individual. Slavery would probably be the easiest example. Way back when, many centuries ago (like, one and a half), people in the US used to own slaves. Slaves weren’t people. They didn’t have the same rights – the rights enjoyed by corporate persons now, for example, to sue and be sued, to own property, to vote, etc. While slave/free status was not solely linked to phenotype, it certainly played a massive role. Faced with such a history, we could say that slaves were always already individuals, but just not recognized as such. Or we could admit that what it meant to be a person changed between 1850 and 2010, and that certain kinds of bodies were not part of the club.
More controversial recent examples might include everything from frozen embryos to nearly born babies. At what point does a collection of cells become an individual? At what point does it stop being part of other individuals – the mother and father? How about less controversial, but still problematic examples, like donated blood, organs, etc.? What about our diseases – are they part of us? When and why? The law has answers to (some of) these questions, answers which are subject to contestation and change, and which may or may not line up with answers from other sorts of cultural and technical arenas.
A last example of interest to me concerns the agency and responsibility of children (and other almost-persons, like those suffering from severe dementia). When do we let someone be responsible for their actions? Again, the law has answers which are not universal across time and place. I believe in Michigan, children under age 7 are simply not legal responsible for their actions. They are not persons in that sense.
Ok, to briefly sum up this kind of meandering walk through issues of agency, biology and individuality: the individual is a fiction, one constructed and reconstructed by the law amongst other discourses (biological, religious, moral, etc.). The individual happens to be a much more convincing fiction than the corporation – it’s more taken-for-granted except at the margins. But it’s still a fiction.
*Remember: Things are real *because* they are socially constructed – the two aren’t opposed. See Hacking 1999.
** I use the phrase “sociolegal” here to highlight one particular kind of relationship in society (“legal”) that is particularly important and relevant for the particular construct here (“the individual”), or at least my discussion of it. I do not mean to imply, and in fact reject the supposition, that “the law” is somehow separate from “society”. Recent “Law and Society” research has also made this move, cf. Silbey 2005.
*** I believe Latour makes a version of this claim in Reassembling the Social and elsewhere. In his terms, the individual is another agencement, another actor-network, combination that is the result of a number of struggles (struggles that are often erased after they are settled).