Corporation, Law, and Capitalism

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 of Law at the University of British Columbia“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 at UNSW Sydney“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), Historical Materialism Editorial Board“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“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 (Helsinki)“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

• PrefaceAcknowledgementsAbbreviations1 Introduction: 'Das Kapital, das immer dahinter steckt '1Introduction2Theoretical Framework3'Developing the Form on the Basis of the Fundamental Form '4Beyond 'Nebulous Left Functionalism ': Further Considerations on Marxism and Law 5Conclusion2 The Roots, Development, and Context of the Legal Concept of the Corporation: the Making of a Structure of Irresponsibility and a Tool of Imperialism1Introduction to 2A and 2B2 AThe 'Back Story ' of the Legal Concept of the Business Company 1Introduction to 2A 2Epistemology of the Corporate Legal Form 3The Creation of Market Society: Legal Relations and Legal Entities 4From the Joint Stock Corporation to the MNC 5Conclusion to 2A 2 BThe Corporation and the Political Economy of International Law 1Introduction: The Corporation and Capitalism in International Law 2Corporations, Law and Capitalism 3Corporations in IL in the Twentieth Century 4Class Law and Class Struggle in IL 5Conclusion to 2B 6Afterword 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 1Introduction to 3A and 3B 3 AGermany 1Introduction to 3A 2From War to Trials: Why 'Nuremberg '? 3The US Occupation and Economic Reform of Germany 4Nuremberg: Political Demands Translated into Law 5The Turnaround: from Germany is Our Problem to Germany is Our Business 6The Trials of the Industrialists: from Morality Play to Theatre of the Absurd 7Industrialists in Other Zonal Trials 8Conclusion to 3A 3 BJapan: the Tokyo International Military Tribunal, or, How the East Was Won 1Introduction to 3B 2Why Tokyo? 3The US Occupation and Economic Reform of Japan 4The International Military Tribunal for the Far East 5Economic Occupation Policy: zaibatsu Dissolution and the 'Reverse Course ' 6Conclusion to Chapter 3: Capitalism 's Victor 's Justice4 Remaking ICL: Removing Businessmen and Inserting Legal Persons as Subjects 1Introduction to 4A, 4B and 4C 4 AThe (ReMaking of ICL: Lawyers Congealing Capitalism 1Introduction to 4A: Constructing ICL 's Foundational Ideology 2ICL ideology, Pre-fab Critiques and Foreclosed Critiques 3An Alternative Foundational Narrative for ICL 4Conclusion to 4A 4 B'No Soul to Damn and No Body to Kick '? Attribution, Perpetration and Mens Rea in Business 1Introduction to 4B 2Conclusion to 4B: so Many Men, so Many Modes 4 CRe-Making ICL: Who Wants to Be an International Criminal? Casting Business in Contemporary ICL 1Introduction to 4C 2The 'New ICL ' and Re-opening the Debate on Collective Liability 3'De-Individualising ICL ': towards Legal Person Liability? 4From Theory to Practice: Recent Developments 5Conclusion to 4C 6Conclusion to 4A, 4B and 4C: Who Let the Dogmatisierung out? 5 Contemporary Schreibtischtäter: Drinking the Poison Chalice? 1Introduction 2The ICC 3Alternative Ways of Dealing with Business in Conflict 4ICL on the Domestic Level 5Host State Cases 6Conclusion 6 Corporate Imperialism 3.0: from the Dutch East India Company to the American South Asia Company 1Introduction: Corporate Imperialism 3.0: The American South Asia Company 2The Story so far … 3The Creation of the Corporate Soul: Corporate Citizenship and Corporate Social Responsibility as the 'Last Maginot Line of Capitalism ' 4Legalised CSR, CA Cause Lawyering and Corporate ICL Problematised 5Consciousness-Building and the Seed of the New Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F References Index