PEOPLE'S CAPITALISM AND CORPORATE DEMOCRACY: AN INTELLECTUAL HISTORY OF THE CORPORATION (GENOSSENSCHAFTSTHEORIE, OTTO VON GIERKE)

Under both the common law and the civil law the corporation was seen as legal person in contrast to the human or "natural" person. The precise nature of this corporate personality has baffled European legal scholars since the time of the Roman republic. This dissertation first explores this problem as it manifested itself to Roman lawyers and later to their hiers, canon lawyers and Civilians. The authoritarian theory that corporations are legal fictions created by the state for its own purposes is contrasted with not only "individualist" school of thought where corporations are seen as basically another type of parternship but also the "Germanist" school of thought developed by nineteenth century German legal historians from ideas first enunciated by canon lawyers. These "Germanists" assumed that corporations were living, organic entities with rights of their own. Next, as attempts by common law judges and attorneys to deal with this elusive problem are explored, it will become apparent that the typologies developed by Continental scholars to describe the corporate entity were adapted by their Anglo-American counterparts.; After the discussion of the European background, attention will focus on attempts to structure or restructure the American business corporation along lines inspired by the various European models. The authoritarian dream of incorporation by the Federal government is examined from its origins in the Progressive era to the present day. Next, the effects of Otto von Gierke's organic theory of corporate personality on the American common law are detailed in a survey of the history of the shareholders' derivative suit focusing on the judicial response to the activities of Clarence Herbert Venner. Finally, the content of "corporate democracy" as a manifestation of "individualism" is explored in a study of the work of Lewis D. Gilbert.; The last chapter views corporations from the perspective of the political scientist. It demonstrates that the authoritarian view of corporations is usually associated with corporatism while "individualists" look toward different forms of syndicalism to emphasize the rights of coporate members. Between these two extremes are various schemes of people's capitalism and peoples' capitalism that attempt to achieve a synthesis.