The Corporation as a Category in Private Law
Hanoch Dagan and Benjamin Zipursky, eds., Research Handbook on Private Law Theory (Elgar, Forthcoming)
30 Pages Posted: 24 Sep 2019 Last revised: 13 Aug 2020
Date Written: September 14, 2019
In this chapter, we examine the conceptualization of the corporation in private law, focusing particularly on categorization functions served by the corporate form. We argue that corporations are conceptualized as a distinctive kind of legal actor, their legal agency being constituted by private and public law alike. We explain the essentials of the corporate form, so understood, and outline the internal and external categorization functions that it performs in private law. Throughout, we emphasize that private law has ensured the legal and practical efficacy of the corporate form by adapting for exigencies generated by the artificial personality of corporations. We conclude with some observations about the challenges corporations present to general private law theory, including the work of corrective justice and civil recourse theorists. Amongst other things, we explain why leading theories of private law need to be significantly amended to account for the legal nature and moral status of corporations.
Keywords: Legal theory; private law theory; corporations; corporate law theory; legal personality; agency; fiduciary law; fiduciary duties
JEL Classification: K00, K10, K11, K12, K13, K20, K22
Suggested Citation: Suggested Citation