In the age of European imperialism, as a cornerstone of the projects of empire, Europeans used to fancy their mission as one of bringing civilization - religious, literacy, science, history...law - to the uncultured peoples of the world. The idea has been thoroughly debunked that the so-called primitive people of the world were isolated from the external world and from one another - a people "without history" - until the people with history, the Europeans, discovered them. Amongst others Eric Wolf brilliantly and seminally argued the point that history has long been a web of complex, changing relationships characterized by intercultural processes that for millennia have been creating new nations, new cultures, new identities. The picture of isolated, isomorphic, coherent entities such as "tribes" or "nations" has always been dated, Wolf has argued.(1)
The contemporary pretense that the internet ushered in a new era of intercultural history for a world that only recently became a global village is flawed on Wolf's analysis: the transfer of ideas and the friction of exchange has merely found a new mode of transmission.
Legal persons, however, may be reversing that long deep trend of humanity's shared history. Legal persons are non-human, non-animate people, largely impervious, therefore, to some of the anxieties of a law suit.
Individual litigation lawyers representing a corporation undoubtedly share very human urges such a hunger to win, a healthy self-regard for appearances, and dismay at a loss. The incrementally built file of a lawyer's character and reputation (historical concepts par excellence) are on the line with each pleading, each representation, and each success or failure.
But the legal person itself, represented by such a flesh and blood lawyer, shares no such trials or tribulations.
Further, legal persons appear to have certain isomorphic, isolationist aspirations to set themselves further outside of that long deep trend of a shared history of humanity - to become the new people without history.
It has been elaborately argued that legal persons are people without conscience. The prototype of the legal person, the modern corporation, is, according to Joel Bakan, "singularly self-interested and unable to feel genuine concern for others in any context."(2) It is, in other words, a pathological entity: a sociopath.
The imbrication of character with conscience is part of what makes character such a deeply historical construct: for people who care about their character it can matter terribly that one's place in the scheme of things is properly characterized. A richer and more three-dimensional understanding of the shared historical world throws one's character more clearly into relief. And empathy is an aspect of a fulsome appreciation of the world in which one's character becomes known; to others, and to oneself.
The commercial concern for a legal person's name - branding - does not court a robust sense of the historical world; rather it flattens the world out to a two-dimensional grid of scarce but fungible wealth and locates the legal person upon it.
To the extent that the shared history of the common law impinges upon that flattening of the historical world of shared humanity, imposing its conscience and a shared sense of injustice on all within its perview, the common law is an irritant.
The common law is a body of law generated organically out of centuries of court cases in common law jurisdictions. Though no doubt esoteric in language and often inpenetrably opaque with formalities and obscure procedures, the common law is also a form of shared history of the commonwealth and its citizens - a cultural reservoir and resource.
Recently large corporations have moved to hive themselves off from the public open conversation of the common law, contriving through arbitration clauses to have their disputes heard in the private world of arbitration. This is a trend that began in the United States and has moved insidiously up to Canada. Corporations like Dell and Rogers have inserted, on their consumer contracts, clauses that claim to bind parties to arbitration to the exclusion of the courts; and in particular to the exclusion of class action law suits.
It is not an easy thing to extract from Rogers when they began to insert mandatory arbitration clauses on their consumer contracts. The contract appears at Rogers' web site with only the most recent date on which the contract was modified. At the moment that Murroff, a plaintiff in Quebec, succeeded in getting an order for Rogers to produce an account of the numbers of disputes with Rogers that had gone to arbitration and the costs thereof, Rogers appealed the decision.
Clearly arbitrations, though private justice, are overseen by physical persons, themselves prey to the full range of trepidations and imperfections as those in a common law court. It's not the personnel of arbitration that further the legal person's aspiration to disencrust itself of history. It's the institutional proclivity of arbitrations to transpire off the record, outside of precedent, and beyond of the inquiring perview of the public that renders the process annodine and pristine, forever born anew.
Not atypically, parties to an arbitration agreement are bound to a confidentiality agreement. Where common law courts are open to the public for the airing of evidence and submissions (and for a nominal fee, the public can peruse the files of both parties) these elements of the arbitration procedure typically remain off the record, along with the decision or award, and even the very existence of a dispute.
Not only is the public precluded from knowing about issues that may be of concern to them, precluded also from agitating for informed legislative reform when disputes arise that also adversely affect the larger public, consumers are also prevented from drawing on other individuals’ experiences. Where corporations, typically repeat litigants on an issue in an arbitration, can draw on their extensive experience with a small pool of arbitrators and the way that issue has been successfully or unsuccessfully argued in the past, each case must be tried de novo for a consumer going up against a corporate party.(3)
Though physicals persons and the local communities in which they are entangled operate like ant colonies, building worlds of meaning out of shared and collective information, exposing themselves sometimes fatefully on the sidewalks of ordinary life, legal persons have an interest in setting up parallel, historyless, processes. What emerges out of this parallel process are people constituted by contrived selves, brands backed with advertizing dollars rather than reputation, names without history.
(1) Eric R. Wolf, Europe and the People Without History, (California: University of California Press, 1982
(2) The Corporation: The Pathological Pursuit of Profit and Power (United States: Free Press, 2004) at 56
(3) Susan Lott, Marie Hélène Beaulieu and Jannick Desforges, " Mandatory Arbitration and Consumer Contracts", report prepared for the Public Interest Advocacy Centre, at 31