Corporate Crime and the Religious Sensibility
| Date | 01 July 2003 |
| Author | Joseph Vining |
| DOI | 10.1177/1462474503005003005 |
| Published date | 01 July 2003 |
| Subject Matter | Journal Article |
05 Vining (to/d) 6/5/03 10:29 am Page 313
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
Vol 5(3): 313–325
[1462-4745(200307)5:3;313–325; 031963]
PUNISHMENT
& SOCIETY
Corporate crime and
the religious sensibility
JOSEPH VINING
University of Michigan Law School, USA
Abstract
Prosecution of corporations, for common law offenses such as homicide as well as for
specially tailored statutory offenses, is now an established part of the administration of
criminal law in the United States. Conviction is explicitly guided and justified by the
retributive purposes of criminal law as much as the deterrent. Evidence of corporate
mens rea generally focuses on calculated indifference to value in itself – of the kind
contemplated in the theory of profit maximization – and corporate culpability and
remorse are operative terms in sentencing. The ontology of a responsible person here,
irreducible to human individuals or to a system, may connect this area of criminal law
to religious thought in a special way. This area may also be where the retributive, with
its recognition of responsibility and its opening to remorse, atonement and forgiveness,
is most clearly articulated and justified. Positive duties are implied and creativity looked
for in analysis. These developments are more congenial to a religious sensibility than to
one that is purely secular. Their broad acceptance may be made possible by the breadth
of religious practice in the United States, and be evidence of contemporary influence
of religious thought on legal thought, evidence indeed of basic connections between the
two.
Key Words
corporation • crime • maximization • organization • religion • retribution • sacrifice
1
For many the criminal condemnation of organizations is a puzzle and a problem. Sanc-
tions are directed at organizations that are explicitly punitive, not merely signals to be
absorbed into their calculations. Their mens rea is evaluated at trial. Their culpability is
judged in sentencing. Their remorse is allowed to affect the degree of sanction and the
lifting of sanction, explicitly, with use of the term ‘remorse’. Their good character and
criminal tendency are explicitly taken into account in a wide variety of administrative
procedures for licensing and in the application of the overarching ‘racketeering’ statutes
in federal criminal law.
313
05 Vining (to/d) 6/5/03 10:29 am Page 314
PUNISHMENT AND SOCIETY 5(3)
The very word ‘organization’ by which the entities in question are categorized contains
the puzzle. If these entities are just organizations, only organizations, then all this that
is going on is very odd. It seems illusory, it seems hypocritical, it seems to be using the
criminal law as part of the civil system of incentives and disincentives in a way that can
only damage the criminal law as a protection of basic value.
But the fact is that judges, jurors and legislators seem to have little difficulty in actually
condemning these entities that are called ‘organizations’, and condemning them quite
apart from any condemnation of individuals that are associated with them and
constantly come and go. This is a massive fact that cannot be stressed too strongly.
Academic law cannot bring itself to stress it. The outrage of judges, jurors and legislators
is as real as the outrage of victims (who of course become ‘victims’ because the criminal
law has entered), their use of the language of criminality is natural and what they say is
directed at the entity and not at the individual agent of the entity.
In this, I want to suggest, they, and (for some) ‘they’ is ‘we’, may be drawing upon,
reflecting and appealing to the religious sensibility. Religious thought is the principal other
area of life where the terms of this secular discussion are used. It is the religious sensibility
that is at ease with the possibility of real persons who are not individuals and who are not,
in their reality, mere organizations of individuals. For great numbers of people it is the
religious sensibility that conceives of value as irreducible, uncapturable and in some sense
alive. And, indeed, religiously based discomfort with what is done to human individuals
in criminal punishment may be something of a source of increasing comfort generally
with the retributive in corporate indictment, conviction and sentencing.
Legal doctrine, as it is called, or the commonly used metaphors and explanatory terms
describing legal decision making, have not been good at allaying the sense of puzzle.
There are doctrines of agency that do not fit, there are doctrines of collective knowledge
which do not seem to describe a reality at least as they are formulated. But a careful and
open-minded reading of lawyers’ arguments, judicial opinions and administrative and
legislative reports can pull out an implicit analysis, in part based on the presence of
positive duty, and can point toward an ontology of entities however inchoate it must
remain for the present.
I deliberately use the large word ‘ontology’, that which has to do with our discussion
of the sense of the nature of the beings around us including ourselves, because it is that,
that question of their nature, which is the basic question from which all else flows, even
the so-called pragmatic work of the law. The opening toward some more realistic and
articulate discussion in the future lies in the fact that these entities are not categorized
simply as organizations, but are also persons. Certainly they are persons in legal analysis,
and always have been. In the history of human thought, non-individual and supra-
individual persons have accompanied and may have preceded the sense of individuals as
also persons, and arguably it is only in the very recent past that it has become possible
even to imagine an equivalence. Today still ‘person’ and ‘individual’ are not identical in
our speech or in our thought.
In applying the criminal law to organizations, the judges who do, and the jurors,
legislators and prosecutors who do, may sense or see something that large numbers of
academic analysts have disabled themselves from seeing. Business corporations are the
organizations typically charged. Seeing a person in the life of such frequently reconsti-
tuted and manipulated entities may present special difficulties – there is a ‘law of
314
05 Vining (to/d) 6/5/03 10:29 am Page 315
VINING
Corporate crime and the religious sensibility
corporate succession’ that struggles with them. But the basis for the standard academic
objection to their criminal condemnation is that a business corporation can never be
anything more than an organization, is always something that can be reduced to or is
an ‘emergent property’ of smaller entities interacting according to a set of ‘rules’. This is
in many ways the orthodox vision of the human being advanced today in secular
academic thought in a variety of fields. Though there is not, as the 20th century has
ended, such objection to the application of the criminal law to individuals on this same
ground as there was at mid-century, the insistence today outside discussion of criminal
law that the human being is ‘nothing more’ than an organization is actually more
pronounced. What is being said of the corporation as ‘nothing more’ than an organiz-
ation – despite the fact that so many seem to see something more – is also being said of
the human being despite the fact that so many seem to see more in a human being. If
what is said of the corporation changes, even just to the point of entertaining the possi-
bility of ‘something more’, what is said of the human being may change. Some would
say it must, in an a fortiori way.
What we may be witnessing in this distinctly modern development of corporate crimi-
nality is the development of a new bridge between secular thought and religious thought
which sees in the human being and beyond the human being something more than a
system.
2
Consider further why the phenomenon of corporate criminality is a problem rather than
simply a phenomenon.
The problem in it is not entirely unconnected with the raised eyebrow that may arch
above your mind’s eye when you read about the unhappiness of China that Japan has
not truly apologized and taken responsibility for the rape of Nanking or the Manchurian
medical experiments. Or when you read all that surrounds the statement of contrition
Japan has made to South Korea, or the President’s apology to the Tuskegee experiment
survivors on behalf of the American people. Or when you look into the question whether
the Pope’s apology for the behavior of Catholics during the Holocaust is or is not a
sufficient apology or whether the diplomatically crafted language of European regret for
slavery and the slave trade is strong and sincere enough. There is as least a little whisper
of wonder whether this is really serious, or only political play.
The wonder whether it is serious has not only to do with doubt that the Catholic
Church, or the people of Israel in the biblical sense, or Japan or China themselves have
a reality beyond the product of the interaction of their living members, and, in particu-
lar, a reality to which remorse could be attached. There is doubt as well that regret,
remorse and apology have any place in serious thought about the working of the great
world, except as irrational emotion to be handled or studied.
Thus, the problem of corporate criminality is a problem because it...
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
Vol 5(3): 313–325
[1462-4745(200307)5:3;313–325; 031963]
PUNISHMENT
& SOCIETY
Corporate crime and
the religious sensibility
JOSEPH VINING
University of Michigan Law School, USA
Abstract
Prosecution of corporations, for common law offenses such as homicide as well as for
specially tailored statutory offenses, is now an established part of the administration of
criminal law in the United States. Conviction is explicitly guided and justified by the
retributive purposes of criminal law as much as the deterrent. Evidence of corporate
mens rea generally focuses on calculated indifference to value in itself – of the kind
contemplated in the theory of profit maximization – and corporate culpability and
remorse are operative terms in sentencing. The ontology of a responsible person here,
irreducible to human individuals or to a system, may connect this area of criminal law
to religious thought in a special way. This area may also be where the retributive, with
its recognition of responsibility and its opening to remorse, atonement and forgiveness,
is most clearly articulated and justified. Positive duties are implied and creativity looked
for in analysis. These developments are more congenial to a religious sensibility than to
one that is purely secular. Their broad acceptance may be made possible by the breadth
of religious practice in the United States, and be evidence of contemporary influence
of religious thought on legal thought, evidence indeed of basic connections between the
two.
Key Words
corporation • crime • maximization • organization • religion • retribution • sacrifice
1
For many the criminal condemnation of organizations is a puzzle and a problem. Sanc-
tions are directed at organizations that are explicitly punitive, not merely signals to be
absorbed into their calculations. Their mens rea is evaluated at trial. Their culpability is
judged in sentencing. Their remorse is allowed to affect the degree of sanction and the
lifting of sanction, explicitly, with use of the term ‘remorse’. Their good character and
criminal tendency are explicitly taken into account in a wide variety of administrative
procedures for licensing and in the application of the overarching ‘racketeering’ statutes
in federal criminal law.
313
05 Vining (to/d) 6/5/03 10:29 am Page 314
PUNISHMENT AND SOCIETY 5(3)
The very word ‘organization’ by which the entities in question are categorized contains
the puzzle. If these entities are just organizations, only organizations, then all this that
is going on is very odd. It seems illusory, it seems hypocritical, it seems to be using the
criminal law as part of the civil system of incentives and disincentives in a way that can
only damage the criminal law as a protection of basic value.
But the fact is that judges, jurors and legislators seem to have little difficulty in actually
condemning these entities that are called ‘organizations’, and condemning them quite
apart from any condemnation of individuals that are associated with them and
constantly come and go. This is a massive fact that cannot be stressed too strongly.
Academic law cannot bring itself to stress it. The outrage of judges, jurors and legislators
is as real as the outrage of victims (who of course become ‘victims’ because the criminal
law has entered), their use of the language of criminality is natural and what they say is
directed at the entity and not at the individual agent of the entity.
In this, I want to suggest, they, and (for some) ‘they’ is ‘we’, may be drawing upon,
reflecting and appealing to the religious sensibility. Religious thought is the principal other
area of life where the terms of this secular discussion are used. It is the religious sensibility
that is at ease with the possibility of real persons who are not individuals and who are not,
in their reality, mere organizations of individuals. For great numbers of people it is the
religious sensibility that conceives of value as irreducible, uncapturable and in some sense
alive. And, indeed, religiously based discomfort with what is done to human individuals
in criminal punishment may be something of a source of increasing comfort generally
with the retributive in corporate indictment, conviction and sentencing.
Legal doctrine, as it is called, or the commonly used metaphors and explanatory terms
describing legal decision making, have not been good at allaying the sense of puzzle.
There are doctrines of agency that do not fit, there are doctrines of collective knowledge
which do not seem to describe a reality at least as they are formulated. But a careful and
open-minded reading of lawyers’ arguments, judicial opinions and administrative and
legislative reports can pull out an implicit analysis, in part based on the presence of
positive duty, and can point toward an ontology of entities however inchoate it must
remain for the present.
I deliberately use the large word ‘ontology’, that which has to do with our discussion
of the sense of the nature of the beings around us including ourselves, because it is that,
that question of their nature, which is the basic question from which all else flows, even
the so-called pragmatic work of the law. The opening toward some more realistic and
articulate discussion in the future lies in the fact that these entities are not categorized
simply as organizations, but are also persons. Certainly they are persons in legal analysis,
and always have been. In the history of human thought, non-individual and supra-
individual persons have accompanied and may have preceded the sense of individuals as
also persons, and arguably it is only in the very recent past that it has become possible
even to imagine an equivalence. Today still ‘person’ and ‘individual’ are not identical in
our speech or in our thought.
In applying the criminal law to organizations, the judges who do, and the jurors,
legislators and prosecutors who do, may sense or see something that large numbers of
academic analysts have disabled themselves from seeing. Business corporations are the
organizations typically charged. Seeing a person in the life of such frequently reconsti-
tuted and manipulated entities may present special difficulties – there is a ‘law of
314
05 Vining (to/d) 6/5/03 10:29 am Page 315
VINING
Corporate crime and the religious sensibility
corporate succession’ that struggles with them. But the basis for the standard academic
objection to their criminal condemnation is that a business corporation can never be
anything more than an organization, is always something that can be reduced to or is
an ‘emergent property’ of smaller entities interacting according to a set of ‘rules’. This is
in many ways the orthodox vision of the human being advanced today in secular
academic thought in a variety of fields. Though there is not, as the 20th century has
ended, such objection to the application of the criminal law to individuals on this same
ground as there was at mid-century, the insistence today outside discussion of criminal
law that the human being is ‘nothing more’ than an organization is actually more
pronounced. What is being said of the corporation as ‘nothing more’ than an organiz-
ation – despite the fact that so many seem to see something more – is also being said of
the human being despite the fact that so many seem to see more in a human being. If
what is said of the corporation changes, even just to the point of entertaining the possi-
bility of ‘something more’, what is said of the human being may change. Some would
say it must, in an a fortiori way.
What we may be witnessing in this distinctly modern development of corporate crimi-
nality is the development of a new bridge between secular thought and religious thought
which sees in the human being and beyond the human being something more than a
system.
2
Consider further why the phenomenon of corporate criminality is a problem rather than
simply a phenomenon.
The problem in it is not entirely unconnected with the raised eyebrow that may arch
above your mind’s eye when you read about the unhappiness of China that Japan has
not truly apologized and taken responsibility for the rape of Nanking or the Manchurian
medical experiments. Or when you read all that surrounds the statement of contrition
Japan has made to South Korea, or the President’s apology to the Tuskegee experiment
survivors on behalf of the American people. Or when you look into the question whether
the Pope’s apology for the behavior of Catholics during the Holocaust is or is not a
sufficient apology or whether the diplomatically crafted language of European regret for
slavery and the slave trade is strong and sincere enough. There is as least a little whisper
of wonder whether this is really serious, or only political play.
The wonder whether it is serious has not only to do with doubt that the Catholic
Church, or the people of Israel in the biblical sense, or Japan or China themselves have
a reality beyond the product of the interaction of their living members, and, in particu-
lar, a reality to which remorse could be attached. There is doubt as well that regret,
remorse and apology have any place in serious thought about the working of the great
world, except as irrational emotion to be handled or studied.
Thus, the problem of corporate criminality is a problem because it...
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