Making the other bodies visible
by Clair Quentin (@_ClairQuentin) on December 7, 2019



This piece was first commissioned by Noorderlicht, published as part of Taxed to the Max for the Noorderlicht International Photofestival 2019.

Just like the rest of us, the rich and powerful die. They have been dying since the beginning of recorded history, and they will continue to die until seemingly intractable problems around ageing are resolved by as yet unimaginable medical technologies. But their wealth and power does not have to die with them. For as long as wealth and power have existed, they have sought to outlive the humans in which they are vested. But how do you achieve this, if you are a bundle of wealth and power? What can you do while your mortal meat-sack possessor is alive, to ensure that you live on after it is dead? The answer is to become encased within a formal property regime so that your existence is a legal fact as well as a material one. It is possible to imagine any number of property regimes within which wealth and power could achieve immortality, but one of the great structural antagonisms at work in the world today - indeed a struggle between the two most powerful forms of institution in existence - is essentially a struggle between two such regimes. Wealth and power have developed two colossal world-spanning mechanisms for achieving immortality, and those two methods are at war with each other.

One method a bundle of wealth and power can use to achieve immortality is to be passed down from generation to generation in accordance with the hereditary principle. This is the origin of the institution of the state. Statehood evolved from control of a territory containing agricultural wealth. And once the control of a territory was sufficiently institutionalised to be passed from parent to child, bandits became kings. The story begins in Neolithic Mesopotamia, but it continues to this day. Medieval European kings were not merely political figures: they stood at the top of pyramids of property relations over land. And while land ownership is markedly less economically significant for the modern state, and democratic structures have largely usurped heredity as regards determining who wields power, the fundamentals of the institution of the state – and in particular the power to expropriate output within the state’s territory through the mechanism of taxation – can be traced continuously back to those earliest city states of millennia ago.

Another method for achieving immortality, if you are a bundle of wealth and power, is to belong not to an individual human, but to a group of humans. Thus even as members of the group die, so other members join, and the group itself, as an entity, just keeps on going in defiance of mortality. This is the origin of the institution of the company, which is much older than is generally realised. When we think of the forebears of today’s giant multinational companies we might have in mind the chartered Dutch and English imperial trading companies of the early modern era, which took grants of sovereign prerogative (i.e. the prerogative to do violence in the name of the state) and exercised it across the high seas as if it were their own. But medieval universities, monasteries and municipalities were often companies, and they too had legal personhood separate from their members, and sovereignty of a kind. When William the Conqueror invaded England in 1066 he subjected the legal constitution of the territory to a complete reboot, wiping clean the slate of Anglo-Saxon power. But the Corporation of London, the incorporated municipality of England’s trading and financial centre which had already been in existence under the Anglo-Saxon kings, he expressly provided for the continued existence of, in a royal charter of 1067.

It is easy to imagine these two forms of self-sovereignty on the part of wealth and power - the state and the company - having been in a mutually antagonistic symbiosis for thousands of years. Perhaps the ancient political tensions between kings in their palaces and priesthoods in their temples, legible in the more historical parts of the Old Testament, are an expression of it. The relationship is symbiotic for a number of reasons. States are responsible for the security of territories, sitting at the apex of systems of legitimized violence, so that (in principle at least) companies must hold their sovereignty subject to the material power of the state to extinguish that sovereignty. But states are fragile. Companies, on the other hand, can learn and grow indefinitely, and thereby become vastly more skilful at the holding of wealth and the exercise of power than any individual could be, so that states come to need companies to help them do what they cannot do themselves. And the relationship is antagonistic for obvious reasons: because each is a threat to the other. A threat, not in the way that competitors within a category are threats to each other, but in the way that wholly different modes of being are threats to each other.

Sometimes the antagonism between these two contrasting modes of being which may be adopted by wealth and power blossoms into open conflict. In England in the seventeenth century the Stuart kings sought to extinguish the power of rebellious corporate municipalities by bringing what were called “quo warranto” proceedings against them – demanding to see (on pain of dissolution) the charter from which they derived their existence, knowing that in many cases they were unlikely to be able to comply. This culminated in the 1680s in quo warranto proceedings against the Corporation of London itself, proceedings which were actually successful in that London was dissolved as a municipal corporation. But very shortly afterwards there was a revolution which replaced the Stuart kings with some more corporate-minded monarchs from the Netherlands, and the dissolution of the Corporation of London was reversed by statute. Today, there is another outbreak of open warfare between states and companies, but the field of battle is not about the existence or otherwise of some ancient constitutional document peculiar to the laws of one particular kingdom. The field of battle is tax, and it is global.

*

Towards the end of World War I an Austrian sociologist called Rudolf Goldscheid developed the concept of the ‘tax state’. Goldscheid argued that, in the modern era, as the productive forces under the prevailing mode of production shifted from being the property of kings to being the property of capitalists, and as over the same period states became increasingly democratic, what the voting public inherited was the institution of the state in an impoverished condition. It was saddled with war debt, incapable of fulfilling major social tasks, and reliant for revenue on the mechanism of taxation – a mechanism to which capital is hostile, and which ultimately only channels revenue back to capital in any event. He called the permanent state of fiscal crisis that states therefore found themselves in the ‘crisis of the tax state’.

For the purposes of Goldscheid’s analysis in Austria in 1917 the interests of capital were largely to be understood as being the interests of a class of propertied human individuals within a territory, but today things are very different – tax states are in crisis still, but they are in crisis globally because the interests of capital are institutionalised into networks of companies incorporated all over the world; networks which cannot be subjected to the law of any one jurisdiction.

The untaxability and impunity of global corporate capital is often understood as a matter of tax and regulatory competition between states: corporate capital is able to demand lighter and lighter tax and regulatory burdens because it can threaten to hit economic growth by moving elsewhere. In this environment, with offshore jurisdictions offering not to tax or regulate corporate capital at all, onshore jurisdictions find themselves having to replicate the tax haven model by carving out undertaxed hideouts for elements of global corporate capital in their own tax systems. The UK (or, at least, London) likes to be where the HQs of tax avoiding multinationals are tax resident; the Netherlands likes to be the conduit for tax-advantaged intellectual property revenues. But underlying this cleanly game-theoretical dynamic of competition there is something deeper and uglier, but more structural, going on.

States, as we have said, are about territory. And so in basic principle each state’s power stops where another state’s power starts – at a border. Companies are not like this, however; they are seemingly of their essence not constrained by borders. This is something of a paradox because ordinary legal principles suggest that companies are ontologically reliant on the sovereignty of the state under whose laws they are incorporated, and by its very nature state sovereignty does not ordinarily cross borders. But companies do. In 1729 a resident of England called Mr Henriques was sued in the English courts for some money he owed to the Dutch West India Company, and he tried a novel defence: he argued that the Dutch West India Company, being incorporated by the Dutch state, did not have capacity to sue in the English courts. He lost, and his case has been used as the judicial touchstone for the proposition that companies know no borders ever since.

A similar defence was attempted by a debtor called Earle in the US a little over a century later in 1839, and the case reached the US Supreme Court. The Henriques case was cited, and the US Supreme Court case went the same way. This outcome whereby companies are to be recognised outside the state that incorporated them was treated by the court as nothing more than a practical necessity in order to give effect to property relations (in these cases debts owed across state borders) which are always already constituted before the existence of the corporate actors is called into question. Seemingly then it stems from something within the deep structure of property regimes, rather than having a discernible jurisprudential underpinning: companies simply do just get recognised, even in places where the laws that bring them into being have no force. And of course out of this principle of being able to sue and be sued springs all the other trappings of being a legal person – owning property generally; specifically owning other companies; forming a multinational group.

The US Supreme Court judgment in the Earle case was given by Chief Justice Taney. Taney is well known for also having delivered the majority opinion in the notorious case of Dred Scott v Sandford, in which it was decided that the descendants of slaves forcibly brought to the US (in contrast to the recognition afforded to foreign companies) were not legally capable of being recognised as citizens. The Dutch West India Company, of course, to whom Mr Henriques owed that debt litigated in England a century or so earlier, had been a major player in the Atlantic slave trade. The impression that emerges from this case law is that multinational companies exist, and accumulate untaxed profits in their borderless juridical otherworld, because of an atavistic principle of law which is not amenable to coherent doctrinal analysis and which is drenched in the blood of enslaved people.

*

As Goldscheid pointed out, it is the state’s modern role of actually doing useful things for populations that is impaired by the fiscal crisis of the state, and the burden of that impairment is not borne equally.

It is borne disproportionately by women, by disabled people, by LGBTQ+ people, by members of racialised minority groupings, and by the populations of states which are less well positioned to survive their fiscal crises because they are at the disadvantaged end of structural inequalities between states. Those are the populations at the hard, dirty, noisy, dangerous end of global value chains, where the raw materials extraction, large scale agriculture and mass manufacture take place in conditions of gross inequality on every axis, separated from places like the UK and the Netherlands by borders which humans mostly cannot cross but which corporate capital can cross freely.

As this essay is being written, whistle-blower disclosures are being made in the media about corporate capital extracting profits tax-free from sub-Saharan Africa via conduit structures in the tax haven of Mauritius. This is endemic tax avoidance by global corporate capital in some of the places in the world most desperate for investment in public health, basic infrastructure, education and so on.

The suffering this causes can be made visible, and it is up to artists to make what is visible felt. But in the case of the underlying structures and mechanisms: the institutional symbioses and antagonisms, and the bodies of law that create the conditions for this bodily suffering … well, just to make them visible is a good start.


The festival included the following artists and work:

Lana Mesić : Souls, ties and a Pile of Carrots
Mari Bastashevski : 10.000 things out of China
Oliver Ressler & Zanny Begg: The Bull Laid Bear
Michele Borzoni : Workforce (2 chapters from this comprehensive project are included, Open Competitive Examinations and Workers Buyout
Gina Peyran Tan: Maid. Helper. Caregiver. Foreign Domestic Worker
Sven Johne: I am the Power (Dresden Walk), 2018 + Heroes of labor, 2018 + A Sense of Warmth
Mark Curran: The Breathing Factory (https://www.galleryofphotography.ie/the-breathing-factory-by-marc-curran/)
Ezio D’Agostino: NEO
Alan Gignoux: Oil Sands
Ivar Veermäe: The Flood
Brigitte de Langen: work in progress on international trade agreements, showing the actual signed paper treaties that exist and are kept in vaults and which underlie the widely accessible digital versions.
Ursula Biemann: Black Sea Files + Deep Weather
Joseph Rodrígue: excerpts from his project Puerto Rican Lament
Jos Jansen: GIG (work in progress), an analysis of the gig economy that is driven by algorithms from the gaming industry.
Martin Toft : excerpts of Masterplan - A Visual Record of Finance
Kanad Chakrabarti: Exorbitant Privilege
Sergey Novikov & Max Sher: INFRASTRUCTURES, on Power, Property, and Territory in the Post-­Soviet Space
Glenna Gordon: American women of the far right
John Vink: Sambok Chap Eviction
Ishan Tankha: A Peal of Spring Thunder
Igor Tereshkov : Oil & Moss
Marvin Leuvrey : Overflow
Anika Schwarzlose: Agenda and Containers
David Klammer: Fight for Forest
Thomas Kuipers: That’s Delirious! (Working Title)
Bérangère Fromont : Except the Clouds
Lena Dobrowolska & Teo Ormond-Skeaping: Future Scenarios
Tony Fouhse: After the Fact
Coralie Vogelaar: Recognized / Not Recognized
Dorothée Elisa Baumann: 2h19 min 19 sec 19 frames
Davide Monteleone: A New Silk Road


author

Clair Quentin (@_ClairQuentin)

Clair Quentin is a UK-based tax lawyer, researcher and tax justice advocate

related

Workers of the World Unite

The use of Marx to justify nationalist leftism is a well worn genre. This explores the falsehoods this always rests on, including both empirical data on migration and their misreadings of Marx.

Workers of the World Unite

The use of Marx to justify nationalist leftism is a well worn genre. This explores the falsehoods this always rests on, including both empirical data on migration and their misreadings of Marx.