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What Rendered Ancient Tyrants Detestable: The Rule of Law and the Constitution of Corporate Power

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Abstract

The phrase “corporate tyranny” might seem to be nothing more than empty rhetoric, a muscular slogan with a plausible ring, but one lacking principled roots in the great tradition of political language which it echoes. In this Article, I aim to show that, on the contrary, it is indeed meaningful to apply the term tyranny in connection with contemporary corporate power—meaningful, that is, according to the criteria governing the use of that term within the limited government tradition’s Rule of Law discourse. I also aim to demonstrate that, according to traditional criteria, certain terms used to lament the harms occasioned by manipulative state power—namely, arbitrariness, slavishness and corruption—might plausibly be employed against the large business corporation. The implications are significant. If the present constitution of corporate power were shown to be hospitable to those ills, then the legitimacy of corporate power would have been called into question on distinctive Rule of Law grounds. The notion that economic power is a limited government problem was a central and recurrent theme in public debates in the United States from the American Revolution until the middle of the twentieth century. Since then, however, the notion of “limited government” has become synonymous with the limitation of state, rather than “private”, power; indeed, “limited government” has become a byword for the social philosophy that professes a belief in “small government”—a philosophy which, in effect, supports corporate power. In the light of that received wisdom, it is not surprising that there has been little scholarly inquiry into whether, and if so, how, the underlying moral commitments of the limited government tradition are incompatible with certain forms of contemporary corporate power. Within the confines of this Article, there is not the space to do more than demonstrate that further inquiry in this area would be worthwhile.

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Notes

  1. For an account of the limited government Rule of Law tradition and its distinctive notions of “arbitrariness” and “tyranny”, see Sempill (2016), sections V–VI.

  2. In 1932, Justice Brandeis wrote: “The prevalence of the corporation in America has led men of this generation to act, at times, as if the privilege of doing business in corporate form were inherent in the citizen; and has led them to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life and, hence, to be borne with resignation. Throughout the greater part of our history a different view prevailed”: Louis K Liggett Co v Lee 288 US 517, 548 (1932).

  3. For an overview, see: Sandel (1998), especially ch. 5; pp. 156–160, 177–185, 211–258; Sitaraman (2017), pts. I–II. For examples, see: Lloyd (1963); Louis D. Brandeis’s extra-judicial and judicial writings in Strum (1995); Justice William O. Douglas in US v Columbia Steel Co 334 US 495, 536 (1948) (“[A]ll power tends to develop into a government in itself. Power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy. Industrial power should be decentralized. It should be scattered into many hands, so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men”); Ickes (2009); Symposium on the constitution and economic inequality (2016).

  4. T Roosevelt, eg, spoke of the “tyranny of … plutocracy”: Fishkin and Forbath (2016), p. 1491.

  5. Pettit (1999), pp. 29, 32–33, 39, 48.

  6. Brandeis (1995b), p. 27.

  7. “The man that cannot live upon his own must be a servant; but he that can live upon his own may be a freeman”: Harrington (1992), p. 269. See further Pocock (1985), p. 107; Sitaraman (2017), pts. I–II.

  8. According to Milton, one is “under tyranny and servitude” if one is “wanting that power, which is the root and source of all liberty, to dispose and oeconomize in the Land…”: quoted in Skinner (1998), p. 75.

  9. Sidney in a complicated way: “[N]o man, whilst he is a servant, can be a member of a commonwealth; for he that is not in his own power, cannot have a part in the government of others”: Sidney (1989), ch. 2, §5, p. 103; see also ch. 2, §2, p. 89.

  10. On how the limited government Rule of Law tradition relates to constitutionalism, see Sempill (2017), p. 286.

  11. Quoted in Sitaraman (2017), p. 301.

  12. Sandel (1998), pp. 212–232; Sitaraman (2017), chs. 3–4.

  13. James M Landis, Dean of Harvard Law School, wrote, e.g., “The pressure for efficiency has led … to concentrations of power on a scale that beggars the ambitions of the Stuarts”: Landis (1938), p. 46; Kessler (2016), p. 1547.

  14. See, e.g.: Fishkin and Forbath (2014); Sitaraman (2017), pp. 107–109 (FDR’s “economic declaration of rights”), 184–191, 212.

  15. See, e.g., the discussion of Eugene Debs in Fishkin and Forbath (2016), pp. 1491–1493; Louis Brandeis: “We already have had industrial despotism. With the recognition of the unions, this is changing into a constitutional monarchy, with well-defined limitations placed about the employers’ formerly autocratic power. Next comes profit-sharing. This, however, is to be only a transitional, half-way stage. The eventual outcome promises to be a full-grown industrial democracy”: Brandeis (1995a), p. 96. Taken at face value, Brandeis’s vision is incompatible with capitalism; though, to be sure, Brandeis might not have intended that to be the case; Sandel (1998), pp. 184–200, discussing the Knights of Labor; Sitaraman (2017), p. 287.

  16. Kessler (2016), p. 1552.

  17. Kessler (2016), pp. 1547–1553–; Sitaraman (2017), p. 199.

  18. Waldron (2012), pp. 12–14; Raz (1979), pp. 214–216.

  19. See, generally, Kelsey (2015); Mitchell et al. (2017); Nicol (2010); Citizens United 558 US 310 (2010).

  20. Consider now, in the era of the Great Recession, the remarks of FDR’s Secretary of the Interior, Harold Ickes, penned during the Great Depression: Ickes (2009), p. 35.

  21. See, e.g., Sitaraman (2017); Fishkin and Forbath (2014). “[B]y the turn of the twentieth century, proponents of the [anti-oligarchical] constitution of opportunity [which Fishkin and Forbath seek to revive] had come to accept that the United States ‘was destined to have a vast, permanent class of propertyless wage earners'. In this respect, even the most radical political economists had made their peace with capitalism …”: Kessler (2016), p. 1546. Footnote omitted.

  22. The capitalist constitution is described in Sect. 3.1 below. See also Sitaraman (2017), p. 287.

  23. See the discussion in the main text from footnote 62 and Sempill (2017).

  24. See, e.g., Sitaraman’s eloquent argument for a revival of the anti-oligarchic current. In keeping with the current’s mainstream as practiced historically in the US, the argument seems not to take seriously enough the possibility of a non-capitalist economic order: Sitaraman (2017). Although I have concerns about the parameters and assumptions that shape his political program, I should make explicit what my footnotes imply: my inquiry plainly has much in common with Sitaraman’s, and I have learned a great deal from his meticulously researched book, which I had the good fortune to discover just before this Article went to press. Moreover, I take it that proponents of the anti-oligarchic current’s revival are not merely open to debating their project, but wish to encourage debate: see, eg, Symposium on the constitution and economic inequality (2016).

  25. See Sect. 4 below.

  26. Trenchard and Gordon (1722), nos. 84–85.

  27. For an explanation of the notion of “manipulative” power as used in this Article, see Sempill (2016), section IV.

  28. See, eg, Symposium on the constitution and economic inequality (2016); Sitaraman (2017); Fishkin and Forbath (2014).

  29. Skinner (2002), p. 165, and his discussion of a similar rhetorical strategy at p. 183.

  30. Sempill (2017).

  31. Pocock (1985), p. 13.

  32. Ibid, p. 6.

  33. Ibid, p. 16.

  34. Ibid, pp. 15–16.

  35. Skinner (2002), p. 182.

  36. On the nature of constitution and reconstitution, see: Sempill (2017). Although the nature of reconstitution is beyond the scope of this Article, it is important to note that the reconstitution of corporate power along limited government, Rule of Law lines would be inconsistent with what, in the Marxist tradition, is called “private ownership of the means of production”: ibid, section 1.1.1. Reconstitution of corporate power is therefore to be distinguished from conventional “corporate social responsibility” proposals which by and large seek to reconcile such “responsibility” with the capitalist constitution: see, e.g., Bottomley (2007), discussed at note 161 below. See Glasbeek’s critique of CSR, which demonstrates that CSR is fundamentally flawed insofar as it tends to advance schemes that are either so modest as to be derisory, or if more ambitious, incoherent and politically naïve because they unrealistically envisage the reconciliation just mentioned: Glasbeek (1988).

  37. Marx (1875), p. 20. Or: before the concentration of economic power is abandoned, should that be considered feasible and worthwhile. See, further, Sempill (2019).

  38. GA Cohen suggests that a “defensible socialist constitution must contain a bill of individual rights, which specifies things which the community cannot do to, or demand of, any individual. To those who say that socialism is, or could lead to, tyranny, socialists often reply that, on the contrary, socialism is complete democracy, that it brings within the ambit of democratic decision issues about production and consumption which capitalism excludes from the public agenda. That reply, I now think, is markedly unsatisfactory”: Cohen (1986), pp. 86–87. Though some might argue that we should strive to move beyond individual rights: West (2011).

  39. Pettit (1999).

  40. The distinction between the “rule” or “empire” “of law” and that “of men” was taken from Aristotle via Livy by, inter alios, Harrington (1992), pp. 20–21, and was assimilated by the Founding Generation, e.g. in Article XXX of the 1779 Massachusetts Declaration of Rights. Ripstein (2009), p. 145; Arendt (1965), ch. 4; Ostwald (1989); McIlwain (1947); Gough (1955); Jaffe and Henderson (1956); Reid (2004); Compare Green (2012); Sempill (2016).

  41. Sempill (2016), section IV.

  42. On the distinction between “formal” or “thin” and “substantive” or “thick” accounts, see Craig (1997). Compare Gardner (2012), pp. 1–18; Fallon, Jr. (1997).

  43. I agree with F. Michelman that “[i]t would be a plain misreading to reduce the American constitutionalist premise of the government of laws to the ‘rule of law’ or Rechtsstaat idea concerned only with the regularity of legal administration and, derivatively, with the form of legislation… [S]urely it will be agreed that in American constitutional rhetoric the notion of ‘a government of laws’ has also shared the meaning of formulas like ‘higher law.’” Michelman (1988), p. 1501, footnote 28. See further, Arendt (1965), p. 161; Corwin (1928); Nelson (1988), ch. IV.

  44. Dworkin (1998), p. 93. See also Allan (2013).

  45. Sempill (2016).

  46. See, e.g., Dworkin (1996) and Allan (2013). Compare, e.g., Alexander Hamilton in The Federalist No 84: Hamilton (1788).

  47. Sempill (2016), (2019).

  48. For an exploration of the relationship between employer power and the principles of the limited government Rule of Law tradition, see: Sempill (2017).

  49. I am using the term “constitution” to denote an idea resembling Leo Strauss’s interpretation of politeia: “Politeia means the way of life of a society rather than its [legal] constitution”: Strauss (1965), pp. 136–137. Since the time of writing, I have learned that David Singh Grewal also uses the term “capitalist constitution”, though he uses it to denote ideas different from those I intend to capture: Grewal (2017).

  50. Craig (1991), p. 542.

  51. Sir William Blackstone provides a famous account of this idea of property. See the discussion in Simpson (1995).

  52. Harris (1995), p. 433.

  53. Wearden (2014). See, further, Piketty (2014); Stiglitz (2015).

  54. Fuller (1969), p. 171. The claim that ours is a “free market” economy needs to be qualified in the light of numerous instances of monopoly, oligopoly, and other symptoms of “market failure”: see Offer (2012).

  55. Harris (1995), pp. 422–423.

  56. Bainbridge (2008), p. 53: “the shareholder wealth maximization norm … indisputably is the law in the United States”. See Dodge v Ford Motor Company 204 Mich 459 (1919). Although the meaning (and importance) of the case are contested (see, e.g., Stout (2008)), the paramountcy of shareholder wealth-maximization remains good law; as to the UK and Australia, see footnote 84 below.

  57. Cohen (1928), p. 12.

  58. Waldron (1988), p. 27. I adopt Waldron’s definition of “ownership” at p. 47.

  59. Cohen (1928), p. 12.

  60. Ibid; Waldron (1988), p. 27.

  61. Ibid, p. 27.

  62. Cohen (1981).

  63. Harris (1995), pp. 422–423.

  64. It is necessary to set aside non-standard relations of dependence which may arise due to the peculiarities of certain individuals, even though such relations might also be due in part to elements of the capitalist constitution: that your emotional welfare depends upon spending Sunday afternoons meditating on the roof of my car does not instantiate a characteristic feature of a system of power. The limited government Rule of Law project is concerned with the standard features of systemic power over persons, typically the power of the state over the subject. Corporate power of the kind examined here concerns the systemic relations of dependence—and, in turn, power over persons—associated with access to resources required to satisfy more or less standard needs and wants (as contemplated by the phrase I use below: “a reasonable standard of living”). For the purposes of this Article, what matters is how the right of an owner to “exclude others from their necessities” tends effectively to confer on some property-owners power over persons: Cohen (1928), p. 18.

  65. The power exercised over employees in particular is examined elsewhere: Sempill (2017).

  66. Under the capitalist constitution, the exercise of investment power, especially by large corporations, has the potential to affect significant aspects of a way of life, not only within but also beyond a particular enterprise. It involves a substantial capacity to influence the “structures of normality” across society, and this through its ability to affect not only what is produced, and where and how, but also the built and natural environments, as well as the tastes, desires, and compulsions which advertising encourages us to experience as second nature. Alasdair MacIntyre suggests that this quotidian dimension of a way of life is embodied in the “structure of normality”, which comprises sets of ongoing and collective practices, habits, rituals, roles, hierarchies, which enable us to identify, distinguish, and compare reasonably determinate and shared ways of life: MacIntyre (2001), pp. 24–25. As to tastes, etc., e.g., Ewen (2001); Beder (2001); Cohen (2000), p. 306.

  67. Cohen (1928), p. 12.

  68. The penal use of investment power is to be distinguished from the reliance upon investment power in a way not intended as a threat or a punishment. A decision to withdraw an investment following a community’s failure to comply with a threat may be sufficiently justified by business reasons other than any interest in the deterrence value of making good on one’s threats. In other words, not every withdrawal of investment following a threat will be exclusively or even partly penal in intent, though it may nonetheless be penal in effect, insofar as its consequence is to deter future non-compliance.

  69. I agree with Robert Hale’s view that “it seems better, in using the word ‘coercion,’ to use it in a sense which involves no moral judgment’ nor any legal judgment”; and with his definition which sees coercion as yielding “conduct… motivated, not by any desire to do the act in question, but by a desire to escape a more disagreeable alternative”. Penal economic power is coercive to the extent that it can yield such conduct. I also agree with this statement: “If I plan to do an act or to leave something undone for no other purpose than to induce payment, that might be conceded to be a ‘threat.’ But if I plan to do a perfectly lawful act for my own good, or to abstain from working for another because I prefer to do something else with my time, then if I take payment for changing my course of conduct in either respect, it would not be called a threat”. Penal economic power is therefore to be distinguished from the reliance upon investment power in a way not intended as a threat. I share Hale’s analysis of the distinction between “threats” and “promises”: see Hale (1923), pp. 470–477.

  70. Sanders (2017).

  71. E.g., Moore (2010); Duke (2011); Treanor (2011); Neate (2012).

  72. E.g., Jenkins (2014).

  73. Justice Stevens cites an amicus brief to the effect that “[C]orporate participation in elections, any business executive will tell you, is more transactional than ideological”: Citizens United 558 US 310 (2010), p. 468. Internal quotation marks omitted.

  74. John Locke declares that, “He acts also contrary to his Trust, when he either imploys the Force, Treasure, and Offices of the Society, to corrupt the Representatives, and gain them to his purposes: or openly pre-ingages the Electors, and prescribes to their choice, such, whom he has by Sollicitations, Threats, Promises, or otherwise won to his designs”, etc: Locke (1689), §222. In Citizens United, Justice Stevens implies that a politician may “owe a political debt to a corporation, seek to curry favour with a corporation, or fear the corporation’s retaliation”: 558 US 310 (2010), p. 433.

  75. Ickes (2009), pp. 36–37. In the late nineteenth-century, former president, Rutherford B Hayes wrote of the US, “It is a government by the corporations, of the corporations, and for the corporations”: quoted in Sitaraman (2017), p. 160.

  76. The objection is not to threats as such, but to the manipulative variety: Sempill (2016), footnote 78.

  77. Sidney (1989), ch. 1, §6, p. 21.

  78. L’Estrange (1967), p. 21.

  79. Waldron (1988), p. 18.

  80. Sidney (1989), ch. 1, §3, p. 16.

  81. Quoted in Skinner (1998), p. 49 (emphasis added). Even a democratic majority might adopt this tyrannical attitude, as the Founding Fathers thought. See Arendt (1965), p. 157.

  82. On the limited government tradition’s conception of arbitrariness, see Sempill (2016), section V.

  83. Tom Paine describes monarchs as tyrants who seek “arbitrary power in an individual person; in the exercise of which, himself, and not the res-publica, is the object”. Quoted in Pettit (1999), p. 56 (emphasis in original).

  84. Parke v Daily News Ltd [1962] Ch 927. Brian Cheffins notes that the provision enacted to overturn Parke “provides only scant protection for workers” because it requires shareholder approval “before a company can make payments” of the kind impugned in Parke, and shareholders “are unlikely” to give their approval: Cheffins (1997), p. 254.

  85. S.172 of the Companies Act 2006 (UK) does not alter this analysis. As Robin Hollington QC puts it, the “duty to act in the interests of shareholders remains the primary duty of directors, so that the duty to have regard to the listed factors, which are not obviously consistent with the interests of shareholders, is subordinate to and in aid of that primary and overriding duty” at p. 7: Hollington (2008).

  86. Quoted in Glasbeek (2017); see also, Glasbeek (2002). Of course, corporate law permits directors to cause the corporation to act in a manner which in effect enhances the welfare of affected humans—say through what is misnamed “philanthropic” giving. But that permission is granted by corporate law on the strict proviso that any welfare-enhancing results spring not from a concern for human welfare as such, ie. not from philanthropy properly so-called, but from the pursuit of profits. Parke v Daily News Ltd [1962] Ch 927, pp. 943, 950–951, 962 applying Lord Justice Bowen in Hutton v West Cork Railway Co (1883) 23 Ch D 654, especially 671.

  87. For a lengthier discussion of the contrast between “regulation” and “reconstitution”, see Sempill (2017), section 1.1; although the discussion relates to the constitution of employer power, its substance is applicable to corporate power, mutatis mutandis.

  88. Of course, natural persons possessing investment power might choose to give as much weight as they like to the public good and to individuals’ respect-worthy interests, expectations, and moral rights. However, property law permits them not to do so, while capitalism encourages them, by material and cultural means, to avail themselves of that licence.

  89. Jaeger (1947), pp. 358–359.

  90. On the importance of holding shareholders to account for what is done by their corporate vehicles, see Glasbeek (2017).

  91. Most notably, Pettit (1999), pp. 298–299; Sandel (1998); Skinner (1998).

  92. Although Locke and Kant both used relevant neo-roman concepts, they are regarded by many as founders of liberalism, and are not conventionally labelled republicans; J. S. Mill (Mill (1989), p. 227: “No longer enslaved or made dependent by force of law, the great majority are so by force of poverty”) and Hayek (Hayek (1960), p. 12), also conventionally called liberals, indict dependence along similar lines; and the most prominent contemporary proponent of the limited government Rule of Law tradition is Dworkin, a self-styled liberal.

  93. Skinner (1998), p. 24. See also Pettit (1999), p. 125.

  94. Skinner (1998), p. 23.

  95. Sidney (1989), ch. 3, §21, p. 440. “[W]e have no other way of distinguishing between free nations and such as are not so, than that the free are governed by their own laws and magistrates according to their own mind, and that the others either have willingly subjected themselves, or are by force brought under the power of one or more men, to be ruled according to his or their pleasure. The same distinction holds in relation to particular persons. He is a free man who lives as best pleases himself, under laws made by his own consent”.

  96. Ibid.

  97. Ibid, ch. 3, §16, p. 402.

  98. On wage-slavery and the limited government tradition’s Rule of Law project, see Sempill (2017). Until the twentieth century, those using the idiom explored here assumed that the employment relationship involved an oppressive condition of dependence. Abraham Lincoln, e.g., thought that “those who spend their entire lives as wage laborers are comparable to slaves. He held that both forms of work wrongly subordinate labor to capital”: Sandel (1998), p. 182.

  99. And, indeed, investment power generally.

  100. Skinner (1998), p. 68.

  101. Ibid, p. 68.

  102. Ibid, p. 47.

  103. Ibid.

  104. Fuller (1969), p. 171.

  105. Waldron (2012), pp. 14, 110.

  106. Skinner (1998), p. 86. For similar notions in Kant’s thought, see Ripstein (2009), pp. 14–15.

  107. Harrington (1992), pp. 20–21.

  108. I am paraphrasing Skinner’s account: Skinner (1998), p. 86.

  109. Ibid, p. 84.

  110. Ibid, p. 39.

  111. Ibid, p. 72.

  112. Ibid, pp. 51, 72–76.

  113. Quoted in ibid, p. 51.

  114. Quoted in ibid, p. 52.

  115. Quoted in ibid.

  116. Ibid.

  117. For the characteristically systematic and comprehensive qualities of the Rule of Law as compared with the ad hoc and fragmentary nature of regulation, see Sempill (2017), section 1.1.1.

  118. The capitalist constitution of investment power in general, and not only penal economic power, would seem objectionable on the foregoing basis. But my focus is on penal economic power.

  119. Quoted in Skinner (1998), p. 52.

  120. Quoted in Sitaraman (2017), p. 98.

  121. Ripstein (2009), p. 37. See, further, Darwall (1977).

  122. See, e.g., Sidney (1989), ch. 3, §19, pp. 434–435.

  123. Ibid, ch. 2, §28, p. 271.

  124. Skinner (1998), p. 90; Sandel (1998), p. 215.

  125. MacIntyre (2001), pp. 24–25.

  126. The mentality of resignation just described might be reflected in the outlook of Party S. Indeed, it arguably sums up a key aspect of the dominant outlook of many social democratic parties today, including the British Labour Party under New Labour and increasingly the French Parti socialiste.

  127. Skinner (1998), p. 47.

  128. By way of illustration, recall the fictitious Party S which was part of the election scenario described earlier. Party S could be any of the social democratic parties of Western Europe. The decisions of these parties to relinquish programs aimed at reducing their communities’ dependence on arbitrary investment power is partly explained by their having experienced or observed the force of the penal use of investment power. Consider, e.g., the volte-face of the Parti socialiste after the “capital strikes” against the policies of the early Mitterrand years. Or the British Labour Party’s decision to amend Clause IV of its Constitution to render itself “electable”. Whether investment power is eventually put to penal use against the Labour Party under Jeremy Corbyn remains to be seen, though it seems probable.

  129. Sidney (1989), ch. 2, §19, p. 191. On the repudiation of the restraints of law by persons of this type, see: ch. 2, §20, p. 193.

  130. David Hume recognized the overlap, or intimate connection, between slavish dependence and corruption: Teachout (2014), p. 53. Lawrence Lessig makes the two words into a compound term, “dependence corruption”: Lessig (2011).

  131. Quoted in Teachout (2014), p. 52.

  132. Sidney (1989), ch. 3, §19, p. 435.

  133. Ibid, ch. 3, §6, p. 350. Sidney posits a mutually-reinforcing cycle of corrupting influence between patron and client: ch. 2, §27, p. 266; ch. 2, §28, p. 274; ch. 3, §19, p. 434.

  134. Ibid, ch. 3, §6, p. 350.

  135. See, generally, Pocock (1985); Teachout (2014).

  136. Sidney (1989), ch. 3, §6, p. 350.

  137. Ibid, ch. 3, §6, p. 350.

  138. Ibid, ch. 2, §27, p. 266.

  139. Ibid, ch. 3, §19, p. 435.

  140. Benjamin Franklin pessimistically held that the new constitution was “likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other”: quoted in Teachout (2014), pp. 15–16.

  141. US corporations spend $2.6 billion on lobbying each year, “which is more than is spent on the maintenance of the two Houses of the U.S. legislative branch”: Glasbeek (2018).

  142. Ibid.

  143. See, generally, Kelsey (2015); Mitchell et al. (2017); Nicol (2010).

  144. Sidney (1989), ch. 1, §5, p. 17 (emphasis in original). Bertrand Russell declaimed: “Advocates of capitalism are very apt to appeal to the sacred principles of liberty, which are embodied in the maxim: The fortunate must not be restrained in the exercise of tyranny over the unfortunate”: Russell (1926).

  145. Sidney (1989), ch. 1, §5, p. 17.

  146. Think of the strand of liberal public philosophy which claims a quasi-natural status for the capitalist constitution. For the fable and its Roman adaptation, see L’Estrange (1967), p. 21.

  147. Sidney (1989), ch. 3, §6, p. 348.

  148. Ibid, ch. 3, §6, p. 350.

  149. Ibid, ch. 3, §19, p. 435.

  150. Ibid.

  151. Cited in Mayer (2013), p. 27.

  152. President Clinton remarked on this problem, colorfully: see Woodward (2005); Woodward adds, “The administration would have to come up with a credible plan it could sell, Clinton said”, to the bond markets: pp. 73–74.

  153. See discussion of contemporary social democracy at notes 126 and 128 above.

  154. Citizens United 558 US 310, 454 (2010).

  155. Ibid.

  156. Though they may have been accentuated by the rise of “neo-liberalism” and the purported necessities of “globalization”.

  157. Quoted in Sandel (1998), p. 215.

  158. L Friedman in The History of American Law records that before corporations had acquired their present appearance of being almost as natural as “natural persons”, it was widely “feared” that they “could concentrate the worst urges of whole groups of men”: quoted in Citizens United 558 US 310 (2010), p. 427 (Justice Stevens).

  159. On certain fundamental limitations of the regulatory project, see Sempill (2017), section 1.1.1.

  160. For a discussion of different models, see Parker (2002), Introduction, ch. 1.

  161. Stephen Bottomley asks whether certain aspects of political constitutionalism should be applied to corporations: Bottomley (2007). But he “does not challenge the pivotal role of shareholder primacy in corporate law”, because challenging it “would depart too dramatically from the prevailing mindset of corporate managers and officers”: Corbett and Spender (2009), p. 151. Imagine if the same weight had been given to the entrenchment of a certain mindset in the managers and officers who served monarchs harboring absolutist pretensions. For a powerful critique of the genre, see Tombs (2015).

  162. Lloyd (1963), p. 182.

  163. On Livy, Harrington, Sidney and the “empire of laws”, see Skinner (1998), pp. 70–75. For republicans, the Rule of Law is indispensable for this task: Pettit (1999), pp. 21, 36, 65, 101, 107, 122, 304.

  164. Sidney (1989), ch. 3, §40, p. 545 (emphasis added).

  165. Glasbeek (2017).

  166. Ibid, ch. 2, §30, p. 288.

  167. Pocock (1985), p. 19.

  168. Ibid.

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Acknowledgements

I would like to thank the following people for very helpful comments or discussions at various stages during the preparation of this piece: the Journal’s anonymous referees, Andrew Currie, Denis Galligan, Wendy J Gordon, Matthew Harding, David B Lyons, Adam Sandel, Ben Sherman, Ken W Simons, and members of my family. I am particularly grateful to Jeff King and Martin Krygier; our ongoing discussions have been invaluable. Finally, I would like to thank Andrew Mitchell and the MLS Academic Research Service for their assistance.

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  1. Melbourne Law School, The University of Melbourne, 185 Pelham Street, Carlton, VIC, 3053, Australia

    Julian A. Sempill D.Phil. (Oxon), B.A./LL.B. (Hons) (Melb)

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Correspondence to Julian A. Sempill D.Phil. (Oxon), B.A./LL.B. (Hons) (Melb).

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Sempill, J.A. What Rendered Ancient Tyrants Detestable: The Rule of Law and the Constitution of Corporate Power. Hague J Rule Law 10, 219–253 (2018). https://doi.org/10.1007/s40803-018-0069-2

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