Most people are aware of the climate crisis. Many are also aware of a growing and troubling gap between the world’s rich elite (the 1%) and ‘the rest’ especially the radically poor. Many are also aware of an increasing sense that this comparatively insulated elite benefits disproportionately from the structural arrangements of the contemporary neoliberal world order. All this, precisely as growing numbers of ordinary citizens struggle to face an ever more uncertain future. Increasingly, perhaps, there is a sense that these dynamics—and the climate crisis itself—are correlated—that they are symptoms of an underlying capitalist disorder. Voices as apparently diverse as those of Pope Francis and Naomi Klein now give high profile voice to this sense.
Fewer though, have heard of the ‘Anthropocene’. The ‘Anthropocene’ is a term combining anthropos (‘human being/man’) and kainos (‘new’/current’) to capture the idea that the Earth has been capitulated into a new geological era as a result of extensive human modification of the Earth System, primarily in the form of climate change.
The mainstream consensus is that the Anthropocene was triggered by harms to the biosphere since the industrial revolution. This is the framing presented as the standard Anthropocene narrative. Less well canvassed, however—and largely absent from the (thus far dominant) standard natural science accounts of the Anthropocene— is the important idea that the Anthropocene—and the climate crisis as its clearest symptomatic marker—represents a crisis of human hierarchy.
This blog reflection brings a critique of Anthropocene discourse (and of its human species agent) into conversation with the concerns noted above in the opening comments. It does so by bringing the origins of Anthropocene climate change into conversation with critique of the industrial colonial origins of the international legal order. In particular, this blog invites reflection the impact of transnational corporate power and the corporate legal form’s ideological role. It is long past time, I suggest, to ask the awkward questions about the nature of the business corporation that judges have for too long avoided.
Perhaps we can begin our reflection by recalling that the historical origins of climate change in the industrial revolution reflect fundamentally exclusory dynamics. As Malm and Hornborg put it:
A scrutiny of the transition to fossil fuels in 19th-century Britain . . . reveals the extent to which the historical origins of anthropogenic climate change were predicated on highly inequitable global processes from the start. The rationale for investing in steam technology at this time was geared to the opportunities provided by the constellation of a largely depopulated New World, Afro-American slavery, the exploitation of British labour in factories and mines, and the global demand for inexpensive cotton cloth. . . . Indeed, a clique of white British men literally pointed steam-power as a weapon — on sea and land, boats and rails — against the best part of humankind, from the Niger delta to the Yangzi delta, the Levant to Latin America. Capitalists in a small corner of the Western world invested in steam, laying the foundation stone for the fossil economy. . . (at 63).
This broadly post-colonial critique is similar to critical legal exposure of the role of industrial colonialism in the foundations of international law. Anghie, for example, in Imperialism, Sovereignty and the Making of International Law, reveals the foundations of the international legal order as being a combination of colonial suppression of ‘Third World’ peoples and the ambitions of Northern states for ‘natural resources’ to feed their increasingly industrialised social order. In short, the broad argument is that nineteenth century Northern colonial and imperial expansionism decisively shaped the foundations of the modern international legal order.
These colonial foundations systematically favour the interests of the Global North over those of the Global South. Global North economic dominance was achieved primarily through the deployment of a range of technical legal devices aimed at protecting the interests of Global North corporations operating in the former colonies, resisting the attempts by new sovereign states to establish sovereignty over their own natural resources.
The dominant narrative of the Anthropocene as a species-level responsibility tends to occlude such historical patterns. Yet these patterns—and the hierarchies at their heart—are clearly visible in the genesis of the current ecological crisis. In fact, an impressively varied range of scholarship exposes convergences between European (and then ‘Western’) constructions of legal (and political) subjectivity, the domination of non-dominant humans and non-human animals, and the plunder of eco-systems. These ‘entanglements of oppression’ can be traced all the way through into industrial corporate neo-colonialism in the age of neoliberal globalisation. Indeed, vectors of oppression are particularly pronounced in industrial corporate capitalism, which is now a globally hegemonic system in which exclusions, marginalisations, inequalities and oppressions are becoming increasingly extreme. Neoliberal capitalist globalisation—in short—is a morbidly uneven process still exhibiting colonial patterns of domination between (and within) (in the words of Woods) ‘imperial and subjected states’ (at 12).
It should be understood that radical injustice and forms of hierarchy were fundamental to the inauguration of the Anthropocene climate crisis in part because ‘uneven distribution [was] a condition for the very existence of modern, fossil-fuel technology’ itself (Malm and Hornborg at 64). But perhaps even more significantly, uneven distribution in turn reflects predictable and well-rehearsed patterns of privilege and oppression. Historically visible patterns of hierarchy remain fully—if not increasingly—salient in the contemporary situation, reaching a particularly troubling expression in climate injustice and environmental racism.
Importantly though, such vectors of hierarchy are also reflected in the juridical ascendancy of the transnational corporate legal form—an ascendancy reflecting the same earlier colonial trajectories. McLean, for example, has shown that corporate privilege played a decisive role in the imposition of European colonial imperialism. She also argues that the accelerated ascendancy of the corporation in the international legal order has brought about ‘the expansion’ rather than the ‘demise’ of the ‘European family of nations’.
Significantly, the very design of the corporation as a legal form can be read as an analogue to the idealised characteristics of European (and colonial) masculinity. Separate legal personality, limited liability and the separation between ownership and control—as well as the legal duty placed upon company directors to pursue profit above all else—are legible as direct analogues to the mythic white, European male. Indeed, the corporate form de-politicises the traditional dominance of a particular class of European men—and now of a transnational class of elite actors.
The way in which the corporation depoliticises dominance can be double-edged—even for those human beings with privileged access (and even notional similarity) to the corporate form itself:
the business corporation is a perfection of the masculist vision of self—existence as property, separation of accountability and enjoyment, abstract rules as justice, domination as ownership. The only irony in this scenario is the fact that the corporate legal form so perfects and depoliticizes domination that even human ‘managers’ (the human equivalents of the business corporation) have become the instruments and agents of the corporation, rather than the title-holders of its immense powers, which they had initially set out to be (Lahey and Salter, at 555).
The depoliticisation of dominance enacted through the corporate legal form is directly related to the fact that legal personhood is a mechanism that depoliticises law’s mediation of hierarchy and dominance. It is salutary to recall with Baxi that in the modern colonial order,
[l]ong before slavery was abolished, and women got recognition for the right to contest and vote at elections, corporations had appropriated rights to personhood, claiming due process rights for regimes of property denied to human beings. The unfoldment of … ‘modern’ human rights is the story of near-absoluteness of the right to property as a basic human right. So too is the narrative of colonisation/imperialism which began its career with the archetypal East India Company (which ruled India for a century) when corporate sovereignty was inaugurated (at 154, first edition).
The ascendancy of the corporate legal form, particularly in its transnational guise was and is pivotal in the genesis (and maintenance) of Anthropocene injustice. Corporate global dominance is perhaps as much a key marker of Anthropocene trajectories as is the climate crisis itself.
Significantly, the transnational corporation’s legal role and form serves a central ideological function in the operationalisation of deepening structural unevenness. The technical structure of the corporate form as a legal person has the effect of mystification—a strategic way of consolidating the legal system’s capitalist tilt.
Revealingly, the US Supreme Court —the court most aggressively extending corporate personhood rights—has increasingly conferred Bill of Rights protections on corporations—while simultaneously ceasing to theorise about the nature of the corporation itself. In fact, as the corporation has accumulated greater levels of power and intensifying levels of mystification as a sovereign legal subject in its own right, the judiciary has become less and less questioning. Mayer argues that the US Supreme Court currently has no coherent or defensible theory of the corporation at all, while Baxi’s important sociological analysis of international human rights law reveals nothing short of its extensive corporate colonisation.
As Mayer rightly notes, this absence of judicial questioning reflects a ‘modern, pragmatic, antitheoretical approach’ that legitimates the corporation’s status. Such an approach, after all, is a far ‘less controversial guarantor of corporate rights than a theoretical methodology that raises fundamental questions about the nature of a corporation and its role in society’.
Yet critique of the industrial-colonial-corporate foundations of the Anthropocene mandates the asking of precisely those fundamental and inconvenient questions.
The business corporation can be seen as a legal cloaking device. It facilitates the accumulation of immense and unaccountable levels of power. Transnational corporations preside over globally salient patterns of privilege and marginalisation in the international legal order, dominating multiple international legal fora, designing textually dense and secretive trade agreements—all with the complex complicity of the neoliberal state. Meanwhile, global corporate actors evade jurisdictional accountability by dint of the complexity of transnational corporate legal structure.
The provocative connections between colonialism, industrialism, the foundations of the international legal order, patterns of socio-economic injustice, the emergence of the Anthropocene and the contemporary dominance of the capitalist corporate person raise some deeply important questions: Does the Anthropocene—as a reference to human species responsibility—operate as an intimately related fiction disguising [while replicating] the very hierarchisation from which the Anthropocene crisis itself emerged? Can ‘we’ afford to continue to speak and think as if ‘we’ are one undifferentiated mass in the face of climate crisis? In particular, is it time to strip back the depoliticising surface of the corporate legal form? Is it time to ask the inconvenient foundational questions concerning the role and position of the corporation in contemporary world society that the legal system seems to ignore?
To this last, I respond: ‘it is long past time to do so’.