In post No. 77, I wrote about "forbidden corporations"; when a legal entity's activities are contrary to public order, the legal entity can be declared forbidden and dissolved by the Court of First Instance at the request of the public prosecutor's office. But this is the back-end of a legal entity's existence. The front-end is that the law, through the legislator, provides a legal entity with the same rights and obligations as flesh-and-blood people have. As section 2:5 DCC puts it:
As to private law, a legal person stands on the same footing as a natural person, unless the statute provides otherwise. (Een rechtspersoon staat wat het vermogensrecht betreft, met een natuurlijk persoon gelijk, tenzij uit de wet het tegendeel voortvloeit)
This concept, of course, is a foundation of corporate law - pervading, for example, personal liability doctrines (see, e.g., here) - recognized for a very long time; nobody in the Netherlands that I know of questions its utility. This is not to say that there aren't though questions around; think of the issue whether corporations are entitled to the same human rights and protection thereof as natural persons are.
Interestingly, new US Supreme Court Justice Sonia Sotomayor questioned the correctness of this foundation under US law, saying that judges "created corporations as persons, gave birth to corporations as persons" and "[t]here could be an argument made that that was the court's error to start with (...) [imbuing] a creature of state law with human characteristics."
During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.
But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.
Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics." (WSJ)
Not surprisingly, this remark created quite a stur in legal/academic circles, also because many SCOTUS watchers (see, e.g., here) are anxious to find out Sotomayor's view on key issues. Go and check Steve Bainbridge, who countered by remarking that "[i]f she keeps up with this line of thinking, the one sure thing is that she'll be making a fundamental error (or, more precisely, two fundamental errors)" and has more on the substantive side of things. Ditto Larry Ribstein.
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