Shields and swords: the human rights of business enterprises and the boundaries of democracy

The article examines the consequences of the legal constitution of the business enterprise as a human rights-bearing entity for the ECHR’s conception of a democratic society. Drawing on case law of the European Court of Human Rights, it analyses the relationship between corporate free speech rights and democracy through the lens of individual and statal analogies to corporate personhood, as embedded in the liberal public/private divide. While individual analogies attribute human rights to business enterprises as (aggregates of) natural persons, statal analogies frame the relationship between business and human rights in terms of a rearticulation of state power and authority in society. It is argued that neither individual nor statal analogies provide a convincing justification for the human rights of business enterprises. Instead, both approaches result in a reinterpretation of political rights as market freedoms, thereby transforming the boundaries of liberal democracy.

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Publication Details

Journal
Transnational Legal Theory
Published
2025-04-03
DOI
https://doi.org/10.1080/20414005.2025.2516924
Primary Topic
Corporate Law and Human Rights
Type
article
Field-Weighted Citation Impact
0.00
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article

Shields and swords: the human rights of business enterprises and the boundaries of democracy

Daniel Augenstein
Transnational Legal Theory
Corporate Law and Human Rights
article

Shields and swords: the human rights of business enterprises and the boundaries of democracy

Daniel Augenstein
article en

Abstract

The article examines the consequences of the legal constitution of the business enterprise as a human rights-bearing entity for the ECHR’s conception of a democratic society. Drawing on case law of the European Court of Human Rights, it analyses the relationship between corporate free speech rights and democracy through the lens of individual and statal analogies to corporate personhood, as embedded in the liberal public/private divide. While individual analogies attribute human rights to business enterprises as (aggregates of) natural persons, statal analogies frame the relationship between business and human rights in terms of a rearticulation of state power and authority in society. It is argued that neither individual nor statal analogies provide a convincing justification for the human rights of business enterprises. Instead, both approaches result in a reinterpretation of political rights as market freedoms, thereby transforming the boundaries of liberal democracy.

Transnational Legal TheoryVol. 16(1-2)
Tilburg University (NL)
Peace, Justice and strong institutions
Openalex Percentile: Top 85%
Corporate Law and Human Rights
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