VIII. State, Corporation, Union

The three institutions dominating 20th century social life share a finite set of constitutive and operating characteristics that generate a comparable body of tensions producing related legal doctrines. Detailing these characteristics should provide a basis for further research on the similarity and differences among these three unities, and ultimately shed some light on the requirements of a progressive social/legal theory. In a sense this proposal may be read as a detailing of Unger's bureaucracy taken as a point of departure. I will begin with a listing of analytic characteristics and then return for a brief discussion of each.

1) The most profound and amazing movement in the creation of the state, corporation and union is the transformation of a multiplicity into a collective singularity with a distinct conceptual identity. In this original movement the people become the state, investors become the corporation and workers become the union.

2) Since the 17th century liberal societies have attempted to understand this transformation as the consequence of a contractual agreement within the multiplicity.

3) The creation of a collective singularity does not, however, eliminate the multiplicity as such, but the latter continues to exist within the unit and play a role in its ordinary functioning. The continuing role of citizens, shareholders and workers within the unity is one of its liberal features, but it also produces substantial tensions.

4) While the transformation of multiplicity into singularity allows the former to speak with a single voice for external purposes, some additional mechanism is necessary to enable the multiplicity to play its role in the ordinary internal functioning of the organization. Though subject to a wide variety of implementations, within the state, union and corporation the multiplicity speaks according to the majoritarian principle.

5) Individuals within the multiplicity enjoy a certain capacity to voice dissatisfaction with the performance of the unit. Citizens, shareholders and workers are said to have certain interests which may be juxtaposed to those of the organization as such.

6) The functioning of the collective singularity is within the control, responsibility or authority of individuals whose superior position is characterized by a threefold tension, the first two elements of which are directly related to the continuing role of the multiplicity within the unity. State officers, corporate directors and union officials have a simultaneous but distinct relation to the multiplicity as well as the unity, and both of these relations are described as representational. The third point of tension stems from the obvious fact that officers also have 'private' lives, and within these private lives may also be citizens, shareholders or workers.

7) The activities of a unity require an elaborate division of labor staffed by a large number of lesser agents engaged in a variety of tasks. Depending on circumstances, these agents are said to be representing the state, corporation or union, but the relation between lesser agents and the unit is not representational in the same sense as either of the two representational relations enjoyed by superior officers.

8) In modern society collective singularities are frequently complex units with subdivisions, subsidiaries and collateral organizations more or less formally attached. A collective singularity may thus be constituted by a human multiplicity and by an organizational multiplicity. In society this is the problem of federalism, political subdivisions and municipal corporations; in the organization of venture capital there are holding companies, parent organizations and subsidiaries; unions are local, national and international.

With these eight items all the doctrinal and associated social problems deemed central to the study of constitutional law, labor law and corporate law may be isolated and compared.

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A multiplicity must be identified or circumscribed prior to its transformation. Medieval canon law, for example, needed to choose either humanity in general or the Christian world in particular as its relevant multiplicity. In the absence of natural boundaries the original mass is produced by struggles of power that include abstract conceptions as well as material conditions. In post-revolutionary America the organization of the state depended significantly on the relevance of local, colonial and 'national' populations. The constitutional convention theorized a universal multiplicity while operating within a concrete distribution of effective political articulation that was severely limited by contemporary suffrage and representational schemes. In the case of private commercial corporations the relevant multiplicity may be determined theoretically by its charter statement and concretely by the market activity of its stock. The reduced salience of charter statements in favor of capital marketing strategies and, over the course of the 20th century, the appearance of institutional investors is a historical/theoretical development of potential significance in the constitution of corporate multiplicities. By contrast, the bounding of labor populations at the level of the work place understood geographically co-exists with multiplicities identified by skill, trade or task. This dualism may provide an essential condition for a highly mobile, shifting or limited multiplicity.

The transformation of multiplicity into singularity as the result of universal mutual agreement continues to enjoy a tedious allegiance in discussions of the state. Given the stability of social contract metaphors it is tempting to imagine its application to venture capital and organized labor as a simple repetition or analogical extension demonstrating the viability of this central liberal mythology. For example, since unions are produced by a workers contract and collective bargaining produces industrial peace it must be true that the social contract put an end to the war of all against all. The analogy plainly introduces a distortion to the extent it imagines workers at war with each other rather than with owners of the means of production. At least since 1651 contractarian imagery tends to confuse the mechanism by which the multiplicity is transformed into a singularity with arrangements between the latter and third parties. For example, the contract notion according to which the corporation becomes a singularity of multiple owners is not the same as the contract with the state formed by the corporate franchise. The distinction is critical for understanding the continuing role of the multiplicity in the ordinary functioning of the unit as well as the tension between the unit and individual members of the multiplicity.

Whatever its achievements in the production of peace, singularity does indeed reduce the incoherent babble of a multiplicity to an articulate voice. The continuing role of the multiplicity is generally regarded as something of a guarantee that the voice will continue to speak for the body, but this requires an additional communication technique. Majoritarianism is thus inserted between the mass and the unit as a linguistic mechanism operating like sensations of the body informing the mind of its needs. Unlike sensations of the body, however, majoritarianism has never been very good at communicating intensities but exhausts its capacity in crude forms of measurement. In some political discourse this statistical limitation is given a moral dimension, as in the general derision of single issue voting that refuses to weigh a broad spectrum of issues, factors or considerations in order to arrive at a balanced view. It is at least arguable that voting practices within commercial corporations count as an exception to the extent that voting power is differentiated by type and degree of ownership -preferred, common, number of shares etc. Ultimately, the fact that majoritarianism is virtually the sole mechanism mediating between the population and its unified form, and the gross limitations on the range of expression available to it, express a similar relation to the contractarian conception out of which it arises, The contract assumes either that the population shares nothing, stands on no common ground, or that it shares a precisely defined and rigorously circumscribed interests. Majoritarianism is coherent only under the latter assumption, and under this assumption its limited capacity to communicate from multiplicity to singularity does not count as a devastating flaw. Thus corporate voting practices do not mark a departure from classical majoritarian principles to the extent they reflect the view that the common interest of shareholders is precisely and exclusively defined by the unit of ownership.

Perhaps the multiplying of ownership units deserves to be considered as an ownership/intensity function.

According to contractarian mythology, the multiplicity recognizes that it will be better off when transformed into a unity - a conception that holds for citizens and investors as well as workers. Prior to the contract the multiplicity is constituted by particles of absolute difference: each individual is isolated and distanced from every other individual. The point of the contract is a general trading of the pains and inconveniences of difference for the advantages and securities of a similarity articulated in the functioning of the singularity as such. The position of the individual within a multiplicity actively engaged in the ongoing operation of the unit nevertheless remains one of estrangement. The liberal conception qualified the power both of the unit and the majority by understanding the transforming contract as limited and conditional. The consequence is three quite distinct levels or moments of dissatisfaction which I will call, borrowing from Hirschman, exit, voice and loyality. In the first, the person may perceive that he is worse off subsumed within a unit than as a free agent and may desire to return to that 'natural' condition (exit). In the second, dissenting individuals may seek a voice in the operation of the unit for minority views suppressed by the ordinary functioning of majoritarianism. Finally, a person may seek to engage the unit in a discourse of rights which, in all cases, attempts to homologize the interests of the person with that of the multiplicity (loyality) without regard for the mediation of majoritarianism. An examination of the relevant bodies of doctrine in constitutional law, labor law and corporate law might determine the distribution of these distinctions within each area and contrast their utilization across doctrinal clusters.

The situation of superior officers betrays a complexity frequently elided in ordinary legal discourse. They are simultaneously employees of the unit, the people whose activity constitutes the movements of the unit as such, and they stand in a certain privilege/accountability relation with the expression of majoritarianism upon which their tenure depends. Executive officers work for and are paid by the United States? Ford Motor Co. or the International Brotherhood of Teamsters while simultaneously providing these units with a voice without which they would remain lifeless conceptualizations doomed to circulate within a field of abstraction. These first two elements of the officers' situation describe a mutual entailment that would surely produce, if pursued with the vigor of Sambo, a uniformly smooth substance were it not for the mediating intrusion of the division of labor. To be sure, it is common to employ a pretentious functionalism to maintain a severance between voices that constitute an organization ('policy making') and ones that elaborate an otherwise determined substance. The distinction is not false in principle, but its application requires a post hoc assessment. For example, any given speech by a head of state, particularly when delivered abroad, may be perceived as the enunciation of new doctrine or dismissed as a boring elaboration of long established policy dusted off for this highly visible occasion. Critical journalism and several academic disciplines pour much of their energy into establishing one or the other of these alternative perceptions by bringing to the surface preceding operations in order to prove either that the speech made policy for the unit (constitutive) or merely represented the organization's established position (elaboration). The difficulty of applying the distinction and its susceptibility to tendentious manipulation does not, however, reduce it to triviality. On the contrary, the description of both the constitutive and elaborational functions as instances of ‘representation' suggests the immense complexity imbedded within this apparently modern organizational problem.

With the two notions of representation previously described -actual presence within a space of difference and presence by virtue of an absence - it is possible to understand the situation of officials within modern unities. On the one hand, the officer's constitutive function within the organization counts as a reappearance of medieval representation - an ontology of actual presence within a space of difference, because within the terms of these activities superior officers realize and actualize an organizational presence without themselves being the unit.

On the other, this actual presence of the unity has behind it the ordinary functioning of a majoritarian constituency by whose authority officials act; officials thus represent (as terminus) the multiplicity (as source) in the modern sense of making it present by virtue of its absence. In this constitutive function highly placed officials relate to the multiplicity and the singularity according to two distinct notions of representation: through the officer the multiplicity is present by virtue of its otherwise complete absence from the ordinary functioning of the unity; in the officer the unity appears as an actual presence within a space of difference. The situation is further complicated by the potential for a degree of independence from tight control by the multiplicity. The independent officer is no longer a pure terminus in possession of actions owned/authored by the multiplicity but is herself a source, and this poses the inevitable danger that she will usurp functions allocated elsewhere within the organization or substitute her private desires for the 'interests' of the multiplicity and thus undermine rulership with corruption.

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Where superior officers perform elaborative functions the unit is being represented in the modern sense - about this there can be little question. When otherwise established policies are being elaborated it makes sense to think of the official as a mere conduit for their articulation, otherwise the enjoyment of a level of independence would tend to produce a disparity between established policy and its elaboration, and therefore suggest that these particular articulations are really exercises of the constitutive function and not simple elaborations at all.

Agents of the unity who are not officials are variously described as employees, servants or representatives. To be sure, a binary distinction between superior officers and lesser agents grossly oversimplifies the range of distinctions drawn in legal doctrine and social practice as a function of the degree of constitutive power within the unity, the mix of discretionary and ministerial duties, or the proximity of the agent to sovereignty. The simplified binary distinction is maintained here in order to highlight an important difference in representation. To the extent an agent executes relatively ministerial duties or elaborates policies otherwise established she represents the unity in the modern sense of making present by virtue of an absence, and the more circumscribed the function the more closely it resembles the mandate/actual mode of modern representation.

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Most of the critical doctrinal issues in agency relations are woven through the tripartite distinction between actual authority, apparent authority, and personal/private activity. The more narrowly circumscribed an agency role the more likely that deviations from that role will be ascribed to the personal/private realm rather than to a constitutive function secreted within the strictures of ministerial tasks. By contrast, the deviations of superior officers may plausibly be classified as constitutive and this makes determinations of deviance more difficult. To some extent the same ambiguity appears in the case of lesser agents when, from the perspective of third parties, the agent appears to have more (apparent) authority than the unit is willing to concede.

The most important difference between officials and lesser agents is that the latter have no relation to the multiplicity in its role within the ongoing activities of the unit. Whatever the precise nature of the representational relation, agents make present an absent unity and enjoy no majoritarian mandate. Considerable conflict may be produced by the inconsistency between this formal separation and the actual situation of lower level or front line agents. In the case of police or shop stewards, for example, the agent is in direct and immediate contact with a constituency whose authority is absolutely severed by the unity: the agent represents the unity and not the constituency. Statemanship, corruption and disruption of formal lines of authority are the ordinary products of this tension.

The final characteristic of collective singularities is their tendency to be constituted by, or divided into, complex units understood as subdivisions, subsidiaries or collateral members. The central problem is one of determining the relative independence of these units; in modern times such decisions appear thoroughly pragmatic, contextual, arbitrary, tendentious or ad hoc - the rhetoric reflecting one's political perspective. The other side of relative independence is representation in the sense of making the collective singularity present by virtue of its absence. Generally speaking, the determination of independence/representation involves most of the previously discussed items: the relation to a multiplicity in the sense of an original contract and in the sense of an ongoing majoritarianism, and the relation of officials and agents to one or more units. Since the units are treated as persons or subjects to whom responsibility and liability may be attributed there is a tendency to import doctrinal strategies from the context of human agency relations. In the context of school segregation, for example, local units can be regarded as having apparent authority to act for the state, or actual authority might be required, or the behavior of the unit may be analogized to a frolic and a lark not authorized by anyone; the distinction between local units might be taken seriously as though one were dealing with the "fellow servant" notion, or it might be ignored and the "veil pierced" or a "silver platter" image imported from some remote doctrinal island.

What may be truly unique about these entity relations is their situation in a cluster of part-whole relations. None of the previously discussed characters in this little structural melodrama should properly be described as parts of the relevant unity. A unity has officials, agents and citizens-shareholder-members, but its parts must themselves be unities at once similar to and different from the whole. In order to give some sense of the difficulty this poses, it is useful to recall Maitland's question whether there could be a mean term between multiplicity and unity, between societas and universitas. A subsidiary unit may constitute such a mean term to the extent it is formed out of a multiplicity and is not absolutely distinct from the multiplicity constituting itself as the whole. How much overlap or mutuality is consistent with this conceptualization remains problematic, but the puzzlement suggests interesting alternative formulations. For example, where a subsidiary has no constitutive multiplicity at all its form should not disguise its essence as an agency or department within the division of labor of the whole unity. And likewise for the reverse situation, where part and whole derive from a common multiplicity. However, these extreme instances may appear only within the corporate organization of capital, and that's really interesting. Otherwise, the classical example of subsidiaries situated as a mean term between unity and multiplicity is the American type federal organization of states. The great compromise by which United States Senators were conceived as representing state sovereignties was a crucial moment in the history of political organization, but its relevance to labor and venture capital is not obvious.

The point of this exercise is not to suggest a theory of modern organization or to reorganize law school curricula, but to focus attention on the reappearance within legal doctrine of the full relation of capital, labor and political society. What does it mean to learn that these three multiplicities suffer similar or different treatment within legal discourse? And is it not precisely this discourse that maintains the division between labor, capital and politics, and to that extent ro-produces the worker, the owner and the citizen?

FINI