On the methodological limits of the commodity form theory of law in The Corporation, Law and Capitalism

Abstract

Grietje Baars’s The Corporation, Law and Capitalism is an impressive and ambitious historical unfolding of the corporate legal form starting in Northern Europe in the early modern period and expanding globally in the 20th and 21st centuries.1 Methodologically, it is centred on the abstracting of a specific institution—the corporation—as the key analytic for exploring the historical relation between law and capitalism. Baars argues the corporation is one of the most important structural mechanisms at the heart of this relationship. In effect, the corporation enables a tracing and mapping of the various subterranean links between institutions and actors of capitalism, imperialism, and law. In effect, the central institutions and actors Baars chooses to illustrate the ways in which capitalism, imperialism, and law are tied together belong to the domain of International Criminal Law (ICL). Tracing developments from Nuremberg and Tokyo to the ICTY, Rwanda, the ICC and, finally, the more recent development of Corporate Social Responsibility, Baars’s analysis shakes up the dichotomies created by these historical processes. In other words, the structural persistence of the capitalist corporation since the 17th century explains why ICL and the liberal ideal that accompanies institutions of the international legal order is made to fail, or why it cannot fulfil its promise of bringing anyone to justice regardless of who they are. Instead, the corporation reveals a world where the legal form distinguishes between those who can avoid justice and responsibility, and those who do not have the means to contest that structural impunity.