Introduction: Beyond Borders, Bodies and Law
In the aftermath of the 2008 global financial crisis, ‘too big to fail’ became a viral catchphrase to indicate that modern corporations overwhelmingly operated at a scale that made them institutions in the modern political economy with one important caveat. Their market functions, roles and operations were beyond the borders of any one nation or economy. Correspondingly, the mechanisms to hold them accountable were either difficult to codify under criminal law or were absorbed into their cost of doing business when subject to civil codes and fines.
In the last twenty years, headlines, legal opinions and court proceedings have signposted the gaps in our conceptual thinking surrounding the paradox of anti-trust law. While this understandably leaves the public with mixed feelings ranging from outrage to disaffection, the newest global players, big tech platforms, have 8 billion and counting customers, signaling that the corporate form has indeed evolved since the advent of the 21st century.
‘Too big to fail, too big to jail and too big to surveil’ has become the problem statement of corporate personhood in our time and refers to a specific mutation in the corporate form – the Tech Corporation. Lawyers, jurists and constitutional theorists routinely cite the under-theorized and fragmented nature of personhood law and theory. Political theorists concur that distinctions drawn between the role of human and non-human persons in collective political formations, such as representative democracy, are tenuous at best.
This essay uses the language of puzzles and projects in several places in an effort to highlight the more expansive transformation of meaning underway in digital society. Since it is now possible for this transformation to occur contemporaneously across social, political and economic life, it skews the emerging dynamics of power and hierarchies in favour of the all-encompassing. Thus, this essay serves to provide a social theory of ‘corporate personhood’ while reinforcing that corporate personhood is a social theory. To this extent, it has a 400-year-old history as an economic and political entity that generated social effect at scale.
Virtualisation of the Public Sphere
The internet is viewed as the digital technology of singular import to the Tech Corporation’s power in mass democracies. This lens allows us to examine the embedded project of the ‘Virtual Public Sphere’ as a set of mechanisms that alter information flow and structurally transform the digital political economy with it. This essay broadly attempts to put two very different texts and their conceptual categories in conversation with each other— Jurgen Habermas’ 1962 Structural Transformation of the Public Sphere and Edward Bernayes’ 1928 Propaganda. The texts consider the historical conditions from very different times, that is, the growth of consumer capitalism in America between 1880 and 1930 for Bernayes’ and early to late 18th century Europe for Habermas. Both are responding to the emergence of extraordinary forms of new media and the cascading effect of a new social order on political order via ‘public opinion’.
It is also remarkable to note the symbolic figure Edward Bernayes’ cuts, given the hardly coincidental emergence of new forms of media and advertising, as a matter of historical continuity across 19th, 20th and 21st centuries. That every golden age of media technology ushers in a golden age of advertising serves as a sobering reminder, as we continue to consume most of our information from platforms powered by Big Tech, corporations such as Alphabet and Facebook amass most of their revenue from advertising and have emerged as some of the most valuable publicly traded corporations on the planet.
A permeating culture of codified secrecy is hardly new to the corporate form. A direct line can be traced from Wall Street to Silicon Valley and by extension between legal personhood afforded to Big Banks and Big Tech. It is an interesting and longer project to scrutinise legal disputes, court rulings and whistleblower leaks for distinctions drawn between financial information and personal information. The contrast almost vanishes when we consider Big Tech and it’s so far successful campaign as the dominant corporate form, surpassing even Big Banks in their ability to amass information and then bundling it so all information becomes inherently financial in our new digitally enabled surveillance paradigm.
Production of New Modes of Consumption:
“Nothing will be less industrial than the civilization born of the industrial revolution”.
-Jean Fourastié
This section emphasises the parallel transitions and subsequent transformation of economic relations and market dynamics that allow Tech Corporations to emerge front and centre in the post-industrial political economy. It warrants an attempt to map out the new sources of wealth and market dynamics of the emerging economic order.
Value, Wealth and the Virtual: The Post-Material Embrace of Late Capitalism
In 1991, Fredric Jameson’s assertion about ‘late capitalism’ was an emphatic shift in modes of production away from material goods or even services and towards cultural commodities. What is striking about the scholarship around the transmutation of production under late capitalism is that it follows the logic laid out in the 20th century theoretical underpinnings of Marxist socio-economic categories such as value exchange, capital, labour and income inequality. In the 21st century, while we see a general transformation in the meaning of each of these categories traditionally associated with Marx’s labour value theory, we see the market theorists referencing earlier analytic concepts to understand the current market paradigm.
While David Harvey works across an archive of anthropology and economic history and is able to track the transitions within labour, value exchange in an irreversibly global system of capital accumulation, Fredric Jameson makes a concerted study of the postmodern world at the levels of culture, ideology, theory and market discourse noting a displacement in the category of ‘Commodity’. Piketty’s focus on income inequality is equally telling in that he examines questions of wealth creation, capital ownership and concentration of wealth. What Piketty describes as a “metamorphoses” of capital indicated by income ratios and inequality in the long run suggests strongly an altered meaning of ‘Capital’.
What they all agree on can be illustratively viewed in two categories. First, that market dynamics within the history of capitalism have transformed in the post-industrial world. Second, that globalisation, also being a market phenomenon, has shaped modes of production beyond geography, altering our conceptual categories of labour, value, capital and consumers. The mechanisms that have achieved this transformation merit a closer look since they have something to say about the unprecedented crossovers in our socio-economic relations underlying Jameson’s principle concerns about culture as a post-material commodity.
Hence, it becomes clear how it is no coincidence that our current supply-driven market dynamic, with relation to digital technologies, is unfolding at the same time as a rebirth in advertising and a revolution in behaviour prediction. Political theorists take up the task of reviewing past and emerging patterns in the intellectual and institutional history of Democracy in the hopes of identifying emerging norms that speak to noteworthy theoretical puzzles in our future.
The Puzzle of Governance and Public Function
The demand for government services in the context of accelerated technological advancements comes to form the central puzzle of governance in the 21st century. Digital technology has created new forms of governance while simultaneously battling the state on issues of capacity and function. The question as Jack Balkin put it is not if there will be a surveillance state but, who is better suited to lead the Surveillance State?
Technological advancement has created a new battle ground with corresponding rules of engagement. New forms of governance emerge in a transnational zone of ‘legal indistinction’, an operational space bound by legal systems specific to nations but beyond their borders. Here, the Transnational Corporation, authorized by the state, exerts influence and dictates norms on issues that range from cybersecurity, surveillance, intellectual property to user privacy. The claims for such authority as seeped in the language of public interest and capacity claims, foreshadowing a strange state of ‘governance’-starting with a delegation of state authority ending with a capture of it.
It also triggers the second puzzle, a much older problem in a global world order- that these new forms of governance are created in a stateless space and transnational zones where the state lacks the ability to define or enforce. A global paradigm, beyond borders and geography, that tests the limits of any one sovereignty backed legal system and the rule of law as a sub system to organize society at large.
The Puzzle of Sovereignty in a Transnational Order
The second norm is more widely viewed as a project of ‘digitisation of democratic processes’ using envisages integrating the digital technology toolbox to enhance democratic participation and engagement at large. It features models for digitising governance, voting, campaigns and communications. What is common to all the new mechanisms that digital technology enables is that, they speak to the emerging system enhancing direct democratic processes and capacity. A move away from the representative system codified in the Nation State that broadly takes a more institutional approach to the democratic process.
Constitutional theorist Samuel Issacharoff posits that freedoms unleashed by popular sovereignty in the digital age comes built in with the risk of overrunning modern governments by fracturing society along new fault lines and creating a challenge for integrated political authority. Populism and Digital Technology then have in common a preference for mechanisms of unmediated exchange with the Sovereign that signal that a broader transformation of Democracy is well underway in the 21st century.
Conclusion
The risk to our bodied collective political life comes back to revisiting the question of ‘who decides’. The case of the Tech Corporation then presents itself analogous to Virgil’s warning about the punishment of the Diviners for trying to see too far ahead from Canto 20- “Since he wanted so to see ahead, He looks behind and walks a backward path” . The warning in the case of Big Tech presents as a plausible concern over current political forms and future political formations. Fundamentally, it opens our democratic processes and institutions grounded in the concepts and language of the 20th century to anomalies and departures, widely accepted within the category of ‘democratic backsliding’.
Jurist Carl Schmitt once noted, in the context of the modern state, that “all significant concepts of modern theory are secularised theological concepts”. In the context of our essay, this comment would elaborate that the way to study this transformation of meanings, through social theory, would involve updating the concepts and categories that currently serve an explanatory function. This would help us move away from the realm of description to analysis while considering an ontology of the future.
If we consider the proposition that democracy might be transformed structurally in the age of the internet and what emerges might be unprecedented in form, we must prioritise the study of the emerging norms in proverbial cart before the horse fashion. A conclusive insight and source of optimism is that many contemporary works offer valuable typologies and systematised overviews that can serve as coherent building blocks to an underlying theory of institutional power and collective political life in the 21st century.