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.