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He, Dan (2019) Public State, Private Corporation : A Joint History of the Ideas of the Public/Private Distinction, the State, and the Corporation. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/32467 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. PUBLIC STATE, PRIVATE CORPORATION - A Joint History of the Ideas of the Public/Private Distinction, the State, and the Corporation DAN HE Thesis submitted for the degree of PhD 2019 Department of Law SOAS, University of London 1 TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................... 3 ACKNOWLEDGMENT ............................................................................ 5 ABSTRACT .......................................................................................... 6 I. INTRODUCTION .......................................................................... 7 1. Theoretical Foundation I: The Multiple Meanings of the Public/Private Distinction ................................................................ 19 2. Theoretical Foundation II: The Debates on the Public/Private Distinction ..................................................................................... 28 3. Theoretical Foundation III: The Distinction between Public Law and Private Law ............................................................................. 48 4. Methodology: The Cambridge School and Contextualization ..... 64 5. About this Thesis ................................................................... 70 II. THE PRE-MODERN PHASE .......................................................... 73 6. The Origin of the Public/Private Distinction ............................. 74 7. The Origin of the State: From 'Body Politic' to the Crown as Corporation Sole ............................................................................ 84 8. The Corporation: Franchises, Townships, Municipal Corporations and Corporate Colonies .................................................................. 91 III. THE EARLY MODERN PHASE ................................................... 115 9. The Public State .................................................................. 116 10. The Private Property Owner ................................................. 127 11. The Overseas Trading Corporation: The Hybrid of the Public Interest and the Private Interest ................................................... 133 IV. THE LIBERAL TRANSFORMATION OF THE PUBLIC/PRIVATE DISTINCTION I: The Public Sphere and the East India Company ........ 146 3 12. The Discursive Public Sphere ............................................... 148 13. The East India Company ...................................................... 160 14. The Controversy over the Company-State ............................. 167 V. THE LIBERAL TRANSFORMATION OF THE PUBLIC/PRIVATE DISTINCTION II: Edmund Burke on the East India Company ............. 180 15. The Impeachment of Warren Hastings .................................. 182 16. Contextualization ................................................................. 194 VI. THE AFTERMATH ..................................................................... 209 17. The Rationale for the Public/Private Distinction as laissez faire 211 18. Public Corporation vs. Private Corporation ............................. 217 19. Personifying the Colonial Government as Corporation ............ 225 VII. CONCLUSION ......................................................................... 239 BIBLIOGRAPHY ............................................................................... 258 4 ACKNOWLEDGEMENTS My profound thanks are due to Professor Matthew Craven, whose groundbreaking postgraduate course Colonialism, Empire, and International Law helped me to steer my perennial intellectual interest with Frederic William Maitland’s works on corporate personality towards some imperative legal and political issues of the moment: multinational corporations at first, and then the more general idea of the liberal public/private distinction. As a supervisor, Prof. Craven never hesitates to share his wisdom on all aspects of profession and has been unfailingly helpful all the time. But the greater part of the debt to him arises from his inspiring and encouraging personality itself, that he is always trying the best to keep his students motivated. His academic aesthetic as something grounded and substantial, (or borrowing John Mill’s comment of Adam Smith that ‘he gives that well-grounded feeling of command over the principles of the subject for purposes of practice’1), sets up the path for me to follow. His meticulous and sophisticated style as a learned scholar, though, is something I can only admire but not even venture to imitate. The balance, between leaving a space for unscheduled intellectual creations and keeping the project checked with time and due progress, has been managed by him in a way that couldn’t be better managed. My parents deserve special mention here, as they provide me the most generous supports in every sense. This paper could not have been written without their encouragements. Therefore it is dedicated to them with love and gratitude. Of the work itself, it is only necessary to say that its approach to its subject is that of intellectual history rather than that of doctrinal or critical legal studies. It also confines itself to the initial inquiry of how the public/private distinction has been reinvented by liberalism as the category to separate the state and the corporation, leaving the more significant question of the constitutive effect of the corporate form in formulating the modern idea of state to a later and more extensive work. While every effort has been made to properly cite and acknowledge copyright, I apologies for any accidental infringement if there is one. 1 John Stuart Mill, Principles of Political Economy (John W Parker 1848) iv-v. 5 ABSTRACT Current liberal discourse relies upon a fundamentally categorical distinction between the public and the private in both the practice and critique of democratic government. A separation of the public/private modes of social organization is quintessential: the state and the corporation are supposed to inhabit separate arenas and act exclusively in the public or private interest. On this premise, broadly based on laissez-faire doctrine, the public/private distinction further attempts to keep governmental regulation of corporations’ activities to a minimum level in order to maximize national wealth and individual liberty. It is evident, however, that these ideas lost much of their practical significance over the course of the twentieth century, with the rise of the welfare entrepreneurial state, and later, the adoption of the neoliberal modes of governance that enacted particularly through privatization. A re- appraisal of the public/private distinction thus becomes necessary in order to bring it into correspondence with the increasing assimilation and cooperation between the state and the corporation in promoting and protecting the public interest. Having juxtaposed the intellectual history of the public/private distinction with those of the state and the corporation in a chronological narrative, this thesis seeks to demonstrate that the state and the corporation was not separated by reference to the public/private distinction until the late eighteenth century. A key marker, it is argued, is to be found in the metropolitan public discourse surrounding the transformation of the East India Company into a local sovereign power in India. A significant segment of public opinion of that time, mostly exemplified in Edmund Burke’s public speeches, held that the governance should be institutionally separated from the commerce to avoid the possible erosion of the public interest by the private interest. The public/private distinction thus turned into an artificial rubric for defining the separate roles and characteristics of the state and the corporation, which in turn served to obscure the complex social interlinkage and the inherent similarity between them. An alternative to this pseudo-distinction, as proposed in the end of this thesis, is to avail a nuanced version of individualism to reconceptualize the relationship between the state and the corporation. 6 I. INTRODUCTION Is there a genus of which the state and the corporation are species? This thesis argues that, perhaps, there is, and redefining the public/private distinction might have a crucial role to play in recognizing this homogeneity between the state and the corporation. The term 'corporation' is used here to refer to a particular form of human association that stands beyond its individual members and has its own distinctive personality, which means it is recognized by law as capable of having its own rights and performing its own duties.2 In
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