16 December 2022
This past May, Illinois Senator Richard Durbin introduced a bill entitled “The Alien Tort Statute Clarification Act,” which sought to clarify a nearly 250-year-old statute. In essence, the 1789 Alien Tort Statute codified that federal district courts had the authority to hear charges brought by a foreign national against an American citizen[i]. Durbin’s clarification states that the statute applies to charges brought against anyone under the personal jurisdiction of the United States[ii]. This means that an American can be sued in their federal district court by a foreigner under this statute.
Durbin’s clarification seems redundant: if the founders decided in 1789 that a foreigner could sue an American, does that not imply that foreigners can sue anyone that must adhere to the United States’ laws?
In 2005, six Malians faced a dilemma. They were suing Nestlé USA and Cargill, two food manufacturing corporations, because the six were trafficked to work as slave labor on cocoa plantations in the African nation of Côte D’Ivoire, which were funded by and a part of the supply chains of Nestlé and Cargill. Sixteen years later, in an 8-1 decision by the Supreme Court, the justices held that the 1789 statute did not allow the Malians to bring the suit in a United States court, because, first, the only action that took place in the United States related to this – the corporate decision-making to buy from and financially support the plantations – was not tantamount to aiding and abetting slavery and, second, the statute does not give federal courts jurisdiction to hear any further crimes purported to have taken place outside the country[iii].
Justice Samuel Alito dissented to Justice Thomas’s opinion, saying that the statute would certainly allow for the Malians to bring suit against a “natural person” for the same actions, and that the Court neglected to consider this because it ruled most of the case too early and out of its jurisdiction. Alito went on to say “I would hold that if a particular claim may be brought under the [law] against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation. Corporate status does not justify special immunity.”[iv]
Durbin’s clarification presents the legal remedy Alito’s dissents desired, as the clarification clearly delineates that extraterritorial jurisdiction fits within the 1789 statute. Once and for all, if you can be prosecuted in a United States court you can be held liable by a foreigner via the Alien Tort Statute.
Regardless of the clarification, though, there is no doubt that the six Malians did not get justice for their suffering. Trafficked as children, they have spent most of their lives fighting in U.S. courts for reprieve, but the United States has shrugged away American responsibility to help recover damages on a technicality.
More concerningly, though, the technicality is baked into the way the United States perceives Justice. As a broad philosophical term, justice is often cited as giving to each what they deserve. This definition presupposes that some entity is responsible for the giving and that some entity is entitled to receiving. The Nestlé case painfully highlights that those considered liable and those considered indebted, in terms of justice, are not clear in the eyes of the law.
The establishment and service of Justice is a core tenet of American civic life, present in the preamble to the Constitution. Even before that, though, is the three-word mantra of American Democratic-Republicanism: We the People. Before justice is served – be it by criminal prosecution, financial compensation, or creating equitable systems of governance – we must reckon with the question: who are “We the People?”
Recognition in justice is a relatively new area of study but has roots in centuries of philosophy. 17th century philosopher, John Locke, posited that moral responsibility was something held by a being who is “a thinking intelligent Being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places; which it does only by that consciousness, which is inseparable from thinking, and as it seems to me essential to it.[v]” In essence, Locke saw our moral responsibility to one another as contingent on our abilities to use reason. In 1998, American Philosopher, T.M Scanlon, considered our rationality as a basis for “mutual recognition” of other people’s moral value, thus creating moral obligations between beings. Scanlon emphasized that this “mutual recognition” forces us to recognize certain actions towards another person are morally impermissible. As long as our actions can be rooted in reason, and we recognize one another as equally rational beings, we are living morally[vi].
By and large, Locke’s and Scanlon’s approaches to morality through our rationality make sense – treating each other fairly is a fairly intuitive precept for morality. But “rationality” is hard to pin down beyond what Locke and similar philosophers note in their writings. For example, some more complex intellectual disabilities may impact key cognitive functions, such as rationality; should intellectually disabled people be discounted? Obviously, people with disabilities are no different on a moral level than any other human, and it would be wholly irresponsible to discount them because discerning their rational capacity is hard.
This dilemma reveals the most important aspect of personhood: social value. In response to the dehumanization of disabled people, Robert Bogdan and Steven Taylor wrote in 1989 that abled people with strong relationships with disabled people view humanity through four key lenses[vii]: attributing thinking to the person, seeing the disabled person as an individual, viewing their relationship as reciprocal, and identifying social positions for their disabled partner in family units or other social circles.[viii] Some critics, such as Bioethicist, Tom Koch, have noted that personhood in disabled people is better described as “relational” rather than “reciprocal,” as disabled people may lack the ability to reciprocate certain behaviors, but that ought not withhold them from being a person.[ix] Regardless, Karen Schwartz of the University of Manitoba notes that these works echo a shared principle: “Humanity and personhood are therefore affirmed by the relationships that people have with one another and both caring and being cared for are ways to demonstrate that humanness. A person is a person by virtue of the loving relationships he or she has, not by virtue of what some consider to be deficits or undesirable and unwanted characteristics.[x]” Thus, the “social value,” the place people hold in our hearts and social fabric, is a key determinant of personhood in modern philosophy.
Recognition in justice thus asks us to recognize the social contributions of other people. Axel Honneth uses the example of workers being paid an unfair wage: in this instance, the corporation does not recognize the social contributions of the workers, so it is not giving them what they deserve. Thus, we decide someone is acting unjustly when they are not recognizing the social value of other people[xi]. While similar to Scanlon’s mutual recognition, Honneth’s view importantly departs from rationality as the basis for responsibility for the aforementioned reasons and emphasizes that if someone is an integral part to our social fabric, we collectively owe them recognition within our conception of justice[xii].
Honneth’s argument works just as well when deciding who is liable to uphold justice. Consider the Nestlé case: Nestlé claims that they had no part in the slavery taking place on these plantations, but they financially supported and benefited from the slaves via the cocoa they produced. Since the enslaved individuals – like the Nestlé executives who made the corporate decisions – both provided economic value and existed as rational beings, they ought to be considered as people who were treated unjustly. Nestlé was rewarded for this unjust treatment with the profit from the exploits, some of which was used to further support these practices via the funding they sent. Because Nestlé gained economic value from the enslaved employees, who are rationally equal beings, it stands that Nestlé ought to reaffirm the social value of the slaves and compensate them for their suffering.
Personhood is fairly easy to understand generally: most people know it when they see it. But as the above example shows, a corporation seems to act similar to a person, in a moral sense. After all, it is people who operate these corporations; they simply choose to act in unison and under a banner with a specific name. In American legal theory, organizations of people acting as a unit are a “juridical person,” in contrast to a “natural person.”
In early American law, organizations of people benefitted from being legally considered a person because it augmented the legal understanding of property rights[xiii]. Very generally, property is some material thing you have a positive reason to hold; in the example of unfair wages, the workers’ wages were their property. In contrast, a thing is not your property simply if it belongs to nobody else. Property is something you have a positive claim to in opposition to anyone else’s claim to that thing. This further implies that you can only have property over something as long as you are alive to claim it. Thus, organizations found an advantage in not tying property to one individual’s lifespan, as they could hold it and pass it down collectively ad infinitum, without being subject to inheritance laws.
Some philosophers have considered these positive claims to things as an integral part to personhood, too. In 1982, Margaret Radin wrote that property is “necessary for individual ‘to achieve proper self-development – to be a person.’[xiv]” Building off the social-value theory above, Radin’s work highlights that our social value is exercised through what we own: we deemed that a worker earned a wage because they provided social value, meaning they were entitled to certain property due to their social value. We cannot have a positive claim to something without social value, and social value is only practicable once property is involved.
However, this presents an unfair advantage that juridical persons have over natural persons. Property is effectively eternal to an organization, but, to a person, it is always temporary. In other words, organizations rarely have to consider the day when their social value is nullified, whereas a natural person must cautiously exercise their social value through their property because they have no alternative. Either they hold their property, or they do not, whereas a corporation can always pass its property around within its ranks. Richard Emerson wrote, in 1962, that “the power actor A has over actor B is the amount of resistance on the part of actor B that can be potential overcome by actor A.”[xv] In other words, A has power over B if A can overcome resistive efforts of B. If social value is exercised through property, then natural persons have much less power than organizations, because natural persons are at much greater risk to lose their instrument of social value.
Organizations of people are more than capable of being morally culpable for certain actions, but they also have the social power to overcome most of these challenges. It makes sense that the Malians lost against a corporation: six former slaves do not have nearly the number of resources at their disposal as the corporation does. Nestlé maybe gained a bad reputation from the case, but that does not change the billions of dollars of growth over the years in tandem.[xvi]
Thus, our view of personhood ought to consider the moral culpability of an entity as well as the power they have to skirt their moral obligations. I will concede that a corporation ought to be considered a person, because, by and large, they act just like a person. But the discussion cannot end there, because corporations have characteristics that make their moral agency much more potent. We the people includes more than just “people” in our traditional sense, and we must hold to account wholly and without regard these “people,” no matter the power they hold.
Given that since Senator Durbin introduced S. 4155 on May 5th, 2022, and no substantive action has taken place leading to the end of the 117th Congress, it is unlikely that the Alien Tort Statute will be amended. The ability to hold other “people” to account is still a murky legal battle and will doubtfully change anytime soon. But the first step in enacting justice is recognizing where justice needs upheld and who deserves to be a part of that decision. Whether that begins as an article, a discussion, or an Act with no viable legislative path to enaction does not really matter, so long as it starts a fight for justice that does not end.
[i] “28 U.S. Code § 1350 – Alien’s Action for Tort.” Legal Information Institute. Legal Information Institute. Accessed November 28, 2022. https://www.law.cornell.edu/uscode/text/28/1350.
[ii] Alien Tort Statute Clarification Act. Bill (2022).
[iii] Nestlé USA, Inc. v. Doe et al. (https://www.supremecourt.gov/opinions/20pdf/19-416_i4dj.pdf June 17, 2021).
[iv] Nestlé USA, Inc. v. Doe et al.
[v] Locke, John. “XXVII: Of Identity and Diversity.” Essay. In Essay Concerning Human Understanding, 1689.
[vi] Ashford, Elizabeth, and Tim Mulgan. “Contractualism.” Stanford Encyclopedia of Philosophy. Stanford University, April 20, 2018. https://plato.stanford.edu/entries/contractualism/.
[vii] Bogdan, Robert, and Steven J. Taylor. “Relationships with Severely Disabled People: The Social Construction of Humanness.” Social Problems 36, no. 2 (1989): 135–48. https://doi.org/10.2307/800804.
[viii] https://www.jstor.org/stable/800804
[ix] Koch T. (2004). The difference that difference makes: bioethics and the challenge of “disability”. The Journal of medicine and philosophy, 29(6), 697–716. https://doi.org/10.1080/03605310490882975
[x] Schwartz, Karen. “Widening Notions of Personhood: Stories and Identity.” Developmental Disabilities Bulletin 37, no. 1-2 (2009): 1–27.
[xi] Fraser, Nancy, Axel Honneth, Joel David Golb, James Ingram, and Christiane Wilke. Redistribution or Recognition?: A Political-Philosophical Exchange. London: Verso, 2018.
[xii] Fraser, Nancy, Axel Honneth, Joel David Golb, James Ingram, and Christiane Wilke. Redistribution or Recognition?: A Political-Philosophical Exchange. London: Verso, 2018.
[xiii] Totenberg, Nina. “When Did Companies Become People? Excavating the Legal Evolution.” NPR. NPR, July 28, 2014. https://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution.
[xiv] Radin, Margaret Jane. “Property and Personhood.” Margaret Jane Radin, property and personhood, 1982. https://cyber.harvard.edu/IPCoop/82radi.html.
[xv] Emerson, Richard M. “Power-Dependence Relations.” American Sociological Review 27, no. 1 (1962): 31–41. https://doi.org/10.2307/2089716.
[xvi] https://www.macrotrends.net/stocks/charts/NSRGY/nestle-sa/net-income
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