When Mammon Comes Marching in…
Challenging the Claim of Corporate “Human” Rights
In the press earlier this month Alastair
McIntosh from North Lochs described the Lafarge Redland Aggregates’
lawsuit as “blasphemous and
idolatrous.” In this essay, he explains why.
Published in The Stornoway Gazette, 28 September 2000, p. 4.
Click here for George Monbiot's Guardian column based on this essay.
Click here for main superquarry index on this website.
Click here for Lord Hardie's Court of Session ruling, and discussion
It was 1989 and I was visiting Bougainville Island in
the Solomon Sea. I’d gone there as a director of the Pacific Regional
Sustainable Forestry Programme. This trained village business groups to manage
their forests sustainably, running their own small-scale, locally manufactured,
portable sawmills.
My role had been to get funds for training from
organisations like Christian Aid and the British government’s Overseas
Development Administration. The programme spanned three newly independent
nations - Papua New Guinea, the Solomon Islands and Vanuatu. Under joint
French-British colonial rule, Vanuatu had previously been called the “New
Hebrides.”
The sustainable forestry programme helped communities
to mill timber for their own needs. It built schools, hospitals, churches and
homes. The cash flow of these projects, once people had been trained, was so
positive that young men no longer had to seek work in the cities away from home.
What’s more, pioneering European companies like B & Q, the DIY superstore,
took a genuine interest. They developed the idea of marketing “ecotimber.”
So, next time you go into B & Q, remember that their environmental policy
owes something to the Hebrides on both sides of the world!
In the South Pacific local communities nearly always
own the land. This, as it happens, contributed some of the inspiration that went
into my own involvement with the Isle of Eigg land reform campaign back here.
But community land ownership alone was not enough to prevent multinational
corporations seeking ways to corrupt, or to exploit trust and manipulate
ignorance. If they could once get in to a place, they’d clearfell forests like
the warm-up for Armageddon.
The twenty volume 1989 Barnett Report by Supreme Court
Justice Tos Barnett found that all 18 of the logging multinationals operating in
Papua New Guinea were corrupt. Indeed, corruption was funding the perversion of
democracy all the way up to deputy prime-ministerial level. Little wonder Tos
Barnett was stabbed in an assassination attempt probably linked to his report.
By helping village communities to manage their own
forest resources, our programme reduced the temptation to sell out to overseas
companies. That’s how I came to be on Bougainville. The programme was
particularly well developed there, with over 100 village sawmills operational
and world-class expertise being developed in sustainable management techniques
that took out the mature trees but took care of the young ones coming up,
leaving the forest relatively undisturbed.
But in the course of 1989, literally while I was
visiting, I saw the Bougainville programme completely collapse. Why? Because a
civil war had started after years of mounting tension. The cause was the
island’s Rio Tinto controlled copper mine – the largest in the world.
Problems ranging from pollution to prostitution had spilled out over a much
larger area than the islanders had originally anticipated. And to this day,
Bougainville remains in a state of turmoil. Indeed, the islanders’ most recent
move has been to fight the corporation in the American courts using an obscure
piece of anti-piracy legislation, the Alien Tort Claims Act of 1789.
So, why had things gone so badly wrong? Well, the
copper mine dominated the economy. The island had become a company town. Basil
Peutalo, a leading churchman from Bougainville summed up the situation in the
following words to a 1989 gathering of the Melanesian, Indonesian and Australian
Council of Churches. He said:
“Here is a people who fear that they are no longer
in control of their destiny and land. They are losing control of the patrimony
of their children. For thousands of
years, our ancestors lived out their interconnectedness with the natural world.
However, this view of nature and the relationship of the human person
with it is challenged today by a spirit of utility which views the earth as
property to be used. The huge amount of money that goes with such destructive
activities has become an attractive wrapping around the negotiations with local
peoples.”
There
are, of course, both similarities and differences between Bougainville and
Lingerbay. Roadstone does not cause the same toxic pollution that copper
tailings create. Bougainvillians are the blackest people in the world, and most
of us are amongst the whitest. But that apart, the parallels are pronounced.
They show particularly in corporate attitude – high-handedness, presenting
themselves as “the only salvation” of the community, funding local
supporters’ groups, and splitting communities in ways that achieve
divide-and-rule.
In
the case of Bougainville Copper Ltd., a Harvard University anthropologist, Prof.
Douglas Oliver, was hired to tell government planners that they were dealing
with a primitive and superstitious people, "who would probably get used to
the company's presence.” This caricature might seem remote from Lingerbay, as
indeed it ought to be, until we remember that the pro-quarry QC, Robert Reed,
famously summed up in June 1995 by saying: “One of the most worrying aspects
of the inquiry has been the gloomy and despairing attitude of many of the Harris
natives who have given evidence, and their suspicion of outsiders, commerce and
enterprise.”
In short, if you’re one of the “natives” and not
on-side with the corporation, you must be backward and superstitious. Doubtless
Lafarge Redland would include me likewise in such a category because I am,
frankly, outraged at their latest move to try and force the hand of the Scottish
Parliament. Look at what they did in the Court of Session in Edinburgh earlier
this month. They brought a lawsuit claiming that the Scottish Executive – our
own democratically elected representatives - were in contravention of the
company’s rights under Article Six of the European Convention of Human Rights.
Now,
Article Six, reads: “In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law.”
I happen to be in complete sympathy with Lafarge
Redland over the amount of time the public inquiry process has taken. However,
by invoking human rights law in defence of what are only actually only corporate
rights – rights of property - they reveal the sinister face of
globalisation.
To understand the gravity of what it means for a
man-made wealth-production machine, a corporation, to claim “human” rights,
we need to look at the history of how corporations came into being. This is
fascinating, because in ways that have implications far beyond Lingerbay, but
which are possibly most clearly seen with a Hebridean eye, it sheds light on the
kind of world that globalisation is moving us all into.
The first corporation, we are told by Blackstone in
his Commentaries on the Laws of England, was the church. Being comprised
of people who had renounced personal wealth, monastic orders needed a legal
device by which to hold property in perpetuity for the community as a whole. At
its best, then, monastic corporate identity was based on both community and
co-operation. It served a higher principle: it attempted to serve God.
However, later in history the idea came about of using
corporate legal entities for competitive domination. The idea is generally
attributed to the members of the East India Company. In 1600 Elizabeth had
granted this a Royal Charter giving, “exclusive trading rights with all
countries beyond the Cape of Good Hope for an initial period of fifteen
years.” In the years that followed the company became possibly the first
joint-stock corporation. This differed from a trade guild partnership in that it
introduced the idea that a company could be owned by people whose sole role was
to provide capital. In other words, the rise of “capitalism” had begun.
By the mid-1850’s the East India Company had become
virtually a sovereign power. By the illegial export to China of opium, it came
to dominate the China tea trade. The Chinese authorities’ opposition to such
“free trade” precipitated the first Opium War. This, of course, was what
also generated the wealth by which Sir James Matheson built his castle in
Stornoway. Indeed, Disraili in Sybil describes Sir James, the proprietor
of all Lewis, as having been: “A dreadful man, richer than Croesus, one
MacDrug, fresh from Canton with a million in opium in each pocket.”
But back to the East India Company. Only the British
navy had more ships. Only the Emperor of China and the Czar of Russia ruled over
more people than its Governor-General. However, in 1858 it was dissolved by
Royal Decree, finally ceasing to exist as a legal entity in 1873. The
ill-feeling its power had stirred up had contributed towards the Great Indian
Mutiny. Shutting it down was supposed to make the natives feel less restless.
The irony is that such control of corporation by state would not be possible
with most of today’s multinationals. If they have trouble in one spot of the
world – like Union Carbide had after the Bhopal disaster – they just shift
footing elsewhere. And note how on Harris, we thought we were dealing with the
English company, Redlands, but now it has become the French Lafarge.
The corporation in its modern incarnation came about
with the Joint Stock Companies Act of 1844. This furthered progression of the
notion that a corporation was a “fictitious person” with rights and
responsibilities in law. However, an indication of the balance between corporate
rights and responsibilities can be gleaned from Gladstone’s comment during the
House of Commons debate that: “Under this Bill, there would be a power for the
first time, for persons to associate themselves in companies, for the purpose of
commercial pursuits, without the fear of interference from any human being
whatsoever.”
A subsequent 1855 act granted shareholders limited
liability. This meant that shareholders could not be subjected to losses greater
than their capital investment. Of course, if you or I as individuals harm
somebody or something, we can be taken to the cleaners. But if we do it via a
corporation, we find ourselves protected from the full consequences of our
actions. Too easily, therefore, limited liability equates with limited
responsibility. In a competitive advanced capitalist world a corporation, after
all, thrives or gets swallowed-up (like the Redland of public inquiry days did)
according to how well its share price is doing. A mainstream corporation can,
therefore, only be ethical inasmuch as it is profitable to do so. In theory
shareholders control what is going on, but when they number perhaps tens of
thousands, the idea of “shareholder democracy” makes little sense in terms
of owning responsibility. At the end of the day the shots are called by one
consideration – Mammon – and those shots have a single target – the bottom
line.
Due to the influence of Empire, variations on British
corporate law have replicated throughout much of the world. America was
particularly influential in the development of the modern corporation because,
as the Encyclopaedia Britannica puts it, “powers of incorporation were
largely reserved to the individual states under the Constitution, which led in
the late 19th century to a competition among the states for
liberalisation of their respective incorporation laws. Given the freedom of
interstate commerce guaranteed under the Constitution, would-be incorporators
could choose which state in which they wished to incorporate without
compromising their freedom to transact business in any other state.”
Under the World Trade Organisation, this
lowest-common-denominator process is today replicating itself worldwide. In
short, it means that corporations controlled by wealth are becoming more
powerful than governments controlled by democracy. Indeed, before his death,
President Abraham Lincoln warned: “Corporations have been enthroned… An era
of corruption in high places will follow and the money power will endeavour to
prolong its reign by working on the people … until wealth is aggregated in a
few hands … and the Republic is destroyed.”
That is why it is such a serious thing when a major
multinational – Lafarge Redland Aggregates – gets up in a Scottish court, as
it did earlier this month, and tries to push the Scottish Parliament into making
a favourable decision on its behalf by claiming “human” rights for their
“corporate personhood.”
Astonishingly, this remarkable notion that
corporations should be treated the same as people in law is not without legal
precedent. The doctrine, known as “corporate personhood,” is generally
traced to the case of Santa Clara County v. Southern Pacific Railroad Company,
1886. There Supreme Court Chief Justice Waite announced, "The court does
not wish to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution, which forbids a State to deny to any
person within its jurisdiction the equal protection of the laws, applies to
these corporations. We are all of the opinion that it does."
The
Fourteenth Amendment to the US Constitution happens to say much the same thing
as Article Six of the European Convention of Human Rights. Ironically, it was
originally intended to give legal protection to former slaves and their
descendants. Justice Waite, however, converted the justifiable “legal
fiction” that a corporation is a “legal person” into an enforceable
constitutional reality that was no longer fictitious. The power of the modern
American corporation was thus baptised by a handful of corrupt oligarchs. Golem
– the man-made man who runs amok in Jewish religious storytelling – was set
loose. Mammon became visibly incarnate.
That is why I have called Lafarge Redland’s Court of
Session lawsuit both “idolatrous and blasphemous.” What has happened is that
a man-made entity has sued for “human” rights. Indeed, I am given to
understand that the Scottish Executive had to defend themselves – which is to
say, ourselves - using a specialist human rights lawyer, and that Lord Hardie
accepted that the corporation could take the position they did.
Well, as I understand things, the meaning of
“idolatry” is to focus “man’s chief end” around the glorification and
enjoyment of something other than God – in this case, profit. And the meaning
of “blasphemy” is to wilfully misrepresent the nature of God – in this
case, implying that something other than God
- shareholders – can create a form of “presonhood” worthy of
“human” rights.
So, to where might we look to find a defence from such
assault? One difference between the American Constitution and ours is that we do
not have constitutional separation of church and state. In American law anything
might go when it comes to defining what human personhod is. But in Britain and
especially Scotland it’s different. The Treaty of Union, the Church of
Scotland Act and the Royal Titles Act 1953 all say, whether we agree with it or
not, that the basis of the social contract that makes up the state we are in is
a Christian one. This in turn must imply that human characteristics are
God-given rather than man-made. Ergo, the corporation may be a “fictitious
person” in law, but to claim human rights is to chance its luck further than
might be good for it.
We
should remember too that corporations exist in company law solely to provide
shareholders with profit. However, if it is argued successfully in law that a
corporation is also a “person” with human rights, then such a “person”
would, by definition, be one held in the condition of slavery to shareholders.
This could place the directors of Lafarge Redland in a most interesting position
with respect to Britain’s anti-slavery laws. Perhaps The Financial
Times hit the mark when, at the time of the Redland predatory take-over, it
described Lafarge as, “a new breed of pan-European monster.”
It
is one thing for a company to act with humility and in the service of society.
This happens, and I have cited B & Q as an example. But by claiming human
rights, Lafarge carelessly reveal their true nature. Not only would they take
away Mt. Roineabhal; they would even challenge the very basis of what it means
to be a “person” in Scots law – a system of law which, let us remember, as
Lord Stair asserted in his seminal Institutions of the Laws of Scotland, 1681,
is grounded in “divine law.”
In
my most optimistic moments I ponder that Mammon may yet rue the day he tried to
set up his golden throne on the shores of the Western Isles. But maybe that was
why God sent him there. Maybe a debate is taking place here that is important in
these our modern times. Well, as James Shaw Grant used to say, the columns of
the Stornoway Gazette are a ceilidh that reflects the world in microcosm.
Accordingly, I trust that Mammon or his diplomats will not shy from contributing
a defence.
Ahhh … Redland … you could have tried slipping
this one one through unnoticed in many parts of the world … but fate would
have you choose to behold the Hebrides!
Further
material on Bougainville, Lingerbay and the theology of constitutional law may
be found on the author’s website, www.AlastairMcIntosh.com.
Click here for material on Moloch, the bardic tradition and the superquarry
Click here to go to main Harris superquarry site
28-9-00