The Corporation, Law and Capitalism

A Radical Perspective on the Role of Law in the Global Political Economy

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In The Corporation, Law and Capitalism, Grietje Baars offers a radical Marxist perspective on the role of law in the global political economy. Closing a major gap in historical-materialist scholarship, they demonstrate how the corporation, capitalism’s main engine from city-state and colonial times to the present multinational, is a masterpiece of legal technology. The symbiosis between law and capital becomes acutely apparent in the question of ‘corporate accountability’. Baars provides a detailed analysis of corporate human rights and war crimes trials, from the Nuremberg industrialists’ trials to current efforts. The book shows that precisely because of law’s relationship to capital, law cannot prevent or remedy the ‘externalities’ produced by corporate capitalism. This realisation will generate the space required to formulate a different answer to ‘the question of the corporation’, and to global corporate capitalism more broadly, outside of the law.

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Grietje Baars is a Senior Lecturer in Law at City, University of London. They have published widely on Marxist theory of law, and co-edited (with Andre Spicer) The Corporation, A Critical, Multidisciplinary Handbook (CUP, 2017).
"A brilliant and compelling critique, Baars rigorously reveals law’s intrinsic links to capitalism, and how that accounts for its chronic failure to protect people and planet from corporate impunity and destruction. Elegantly written and persuasively argued, Baars' conclusions are as thoughtful as they are radical."
Joel Bakan, Professor at Peter A. Allard School of Law, The University of British Colombia, Canada

"Important, groundbreaking, meticulously researched and provocative, The Corporation, Law and Capitalism delivers a radical critique of corporate capitalism. A must read for legal scholars and organization theorists."
Bobby Banerjee, Professor of Management, Cass Business School, London, UK

"Grietje Baars' book, The Corporation, Law and Capitalism, explodes off the page in prose crackling with political energy. Marxist analysis of law is here renewed to target the corporate form, and the legal architectures of immunity and entrenchment that have come to surround it. International criminal law in particular—the 'accountability tool of choice' for so many—is subjected here to an exacting, revelatory re-read. Efforts to hold corporate leaders to criminal account after World War II turn out, perversely, to have unrolled a 'process of exoneration' the repertoire of which continues to ensure law's 'capitalising mission'. Reformist labour too often creates 'value for capitalism', Baars shows. Yet Baars rummage still for the 'seed of the new' in the contradictions of the current situation. This book is both devastating and energizing. Read it, now."
Fleur Johns, Professor of Law, UNSW Sydney, Australia

"The corporation represents the central institution of modern capitalism, yet it is one to which Marxists have paid little attention. Grietje Baars rectifies this situation, offering a systematic Marxist reconstruction of the legal form of the corporation from its origins through to the present day. The book is essential reading to anyone interested in the corporation, Marxist analysis of the law and how to fight contemporary capitalism."
Robert Knox, Senior Lecturer, University of Liverpool, Uk / Historical Materialism, Editorial Board

"This immensely ambitious work examines the past and current uses of international law as an instrument to uphold the irresponsibility of corporate actors for global injustices. From the operations of the early trading companies, the atrocities of the King Leopold's Congo and the trials of the industrialists at Nuremberg, Baars takes us to present-day investment arbitration and international criminal law. She shows us how legal texts and interpretations of jurists over again shield business practices from public accountability. This is not simply a failure of legal institutions or individual jurists, she argues. These institutions and juridical techniques have been positively designed to facilitate corporate governance of the world. Even when they might be used to address obvious problems of global inequality, they are not so used.
This is an erudite and powerful work that will hopefully open the way for further studies on the role of international law in reproducing the conditions of a terribly unjust world."
Martti Koskenniemi, Professor of International Law, University of Helsinki, Finland

"Quite phenomenal in its scope and originality, this book offers a hugely important argument against the false promise of legal emancipation, arguing instead for a truly human emancipation from corporate rule."
David Whyte, Professor of Socio-legal Studies, University of Liverpool, UK

"The Corporation, Law and Capitalism might centre on international law, yet it is required reading for anyone interested in broader issues of corporate power and accountability. […] Through this book, Baars also provides a kind of scholarly call to arms. […] For me, The Corporation, Law and Capitalism emphasises the need to tackle the problems we see produced by corporate power in every scholastic field, through activism and interdisciplinarity. For scholars in social and environmental accounting, Baars’ book offers an insight to how pertinent questions of corporate accountability are being tackled in other fields and to draw inspiration from critical legal scholars."
Marisa McVey, University of St. Andrews, in: Social and Environmental Accountability Journal 39/3 (2019)

Preface
Acknowledgements
Abbreviations

1 Introduction: ‘Das Kapital, das immer dahinter steckt’
 1  Introduction
 2  Theoretical Framework
 3  ‘Developing the Form on the Basis of the Fundamental Form’
 4  Beyond ‘Nebulous Left Functionalism’: Further Considerations on Marxism and Law
 5  Conclusion


2 The Roots, Development, and Context of the Legal Concept of the Corporation: the Making of a Structure of Irresponsibility and a Tool of Imperialism
 1  Introduction to 2A and 2B
 2 AThe ‘Back Story’ of the Legal Concept of the Business Company
 1  Introduction to 2A
 2  Epistemology of the Corporate Legal Form
 3  The Creation of Market Society: Legal Relations and Legal Entities
 4  From the Joint Stock Corporation to the MNC
 5  Conclusion to 2A
 2 BThe Corporation and the Political Economy of International Law
 1  Introduction: The Corporation and Capitalism in International Law
 2  Corporations, Law and Capitalism
 3  Corporations in IL in the Twentieth Century
 4  Class Law and Class Struggle in IL
 5  Conclusion to 2B
 6  Afterword to 2A and 2B: the Modern Corporation and Criminal Law


3 Capitalism’s Victor’s Justice? The Economics of World War Two, the Allies’ Trials of the German Industrialists and Their Treatment of the Japanese zaibatsu
 1  Introduction to 3A and 3B
 3 AGermany
 1  Introduction to 3A
 2  From War to Trials: Why ‘Nuremberg’?
 3  The US Occupation and Economic Reform of Germany
 4  Nuremberg: Political Demands Translated into Law
 5  The Turnaround: from Germany is Our Problem to Germany is Our Business
 6  The Trials of the Industrialists: from Morality Play to Theatre of the Absurd
 7  Industrialists in Other Zonal Trials
 8  Conclusion to 3A
 3 BJapan: the Tokyo International Military Tribunal, or, How the East Was Won
 1  Introduction to 3B
 2  Why Tokyo?
 3  The US Occupation and Economic Reform of Japan
 4  The International Military Tribunal for the Far East
 5  Economic Occupation Policy: zaibatsu Dissolution and the ‘Reverse Course’
 6  Conclusion to Chapter 3: Capitalism’s Victor’s Justice

4 Remaking ICL: Removing Businessmen and Inserting Legal Persons as Subjects
 1  Introduction to 4A, 4B and 4C
 4 AThe (ReMaking of ICL: Lawyers Congealing Capitalism
 1  Introduction to 4A: Constructing ICL’s Foundational Ideology
 2  ICL ideology, Pre-fab Critiques and Foreclosed Critiques
 3  An Alternative Foundational Narrative for ICL
 4  Conclusion to 4A
 4 BNo Soul to Damn and No Body to Kick’? Attribution, Perpetration and Mens Rea in Business
 1  Introduction to 4B
 2  Conclusion to 4B: so Many Men, so Many Modes
 4 CRe-Making ICL: Who Wants to Be an International Criminal? Casting Business in Contemporary ICL
 1  Introduction to 4C
 2  The ‘New ICL’ and Re-opening the Debate on Collective Liability
 3  ‘De-Individualising ICL’: towards Legal Person Liability?
 4  From Theory to Practice: Recent Developments
 5  Conclusion to 4C
 6  Conclusion to 4A, 4B and 4C: Who Let the Dogmatisierung out?

5 Contemporary Schreibtischtäter: Drinking the Poison Chalice?
 1  Introduction
 2  The ICC
 3  Alternative Ways of Dealing with Business in Conflict
 4  ICL on the Domestic Level
 5  Host State Cases
 6  Conclusion

6 Corporate Imperialism 3.0: from the Dutch East India Company to the American South Asia Company
 1  Introduction: Corporate Imperialism 3.0: The American South Asia Company
 2  The Story so far …
 3  The Creation of the Corporate Soul: Corporate Citizenship and Corporate Social Responsibility as the ‘Last Maginot Line of Capitalism’
 4  Legalised CSR, CA Cause Lawyering and Corporate ICL Problematised
 5  Consciousness-Building and the Seed of the New

Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
References
Index
All interested in law, legal history and philosophy, Marxist theory and history of the global economy. Anyone interested in corporate human rights violations, international criminal law, accountability, Nuremberg and Tokyo.