Corporations as Moral Agents: Trade‐Offs in Criminal Liability and Human Rights for Corporations
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| Author | Nick Friedman |
| DOI | http://doi.org/10.1111/1468-2230.12477 |
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Modern Law Review
DOI: 10.1111/1468-2230.12477
THE
MODERN LAW REVIEW
Volume 83 March 2020 No. 2
Corporations as Moral Agents: Trade-Offs in Criminal
Liability and Human Rights for Corporations
Nick Friedman∗
This article argues that a common way of defending corporate criminal liability creates a
dilemma: it provides a strong justification for giving human rights to corporations. This result
follows from approaches to punishment and human rights which predicate each on the status of
moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal
liability, they are eligible holders of human r ights. The article also discusses the doctrinal
application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the
European Court of Human Rights might deploy corporate moral agency as a theoretical
foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If
proponents of corporate criminal liability are dissatisfied with these conclusions, they face
difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to
punishment or human rights.
INTRODUCTION
Corporate criminal liability is a popular tool for the control of corporate mis-
conduct. The doctrine has a long history in England and the United States1
and, recently, it has taken hold in Europe.2Its widespread adoption is surprising,
given the trenchant criticisms to which it has been subjected.3Some advocates
of the doctrine simply assume that it is justified on instrumental grounds. From
∗Junior Research Fellow in Law, St Anne’s College, Oxford, and Early Career Fellow, Bonavero
Institute of Human Rights, University of Oxford. For helpful feedback on an earlier draft, I thank
Liora Lazarus, Miles Jackson, Annelen Micus, Stefan Theil, Joss Saunders, Russell Perkins, Geoff
Shaw, and participants in a seminar at the Bonavero Institute at which this work was presented. I am
also grateful to anonymous reviewers for the Modern Law Review, whose comments substantially
improved the article. Errors are my own.
1 For historical overviews,see, respectively,C. Wells,‘Cor porate Criminal Liability: Developments
in Europe and Beyond’ (2001) 39 LSJ 62; K. Brickey, ‘Corporate Criminal Accountability: A
Brief History and an Observation’ (1982) 60 Wash ULQ 393, 404-415.
2 J. Gobert and A. Pascal (eds), European Developments in Corporate Criminal Liability (London:
Routledge, 2011) 209-325.
3 Notable examples from this vast literature include A. Alschuler, ‘Two Ways to Think about the
Punishment of Corporations’ (2009) 46 Am Crim L Rev 1359; V. Khanna, ‘Is the Notion of
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2020) 83(2) MLR 255–284
Corporations as Moral Agents
the debatable assumption that criminal law deters crime generally4they infer
that it deters corporate crime specifically. In fact, there is a lack of evidence
supporting the doctrine’s deterrent effect,5and certain forms of it may actu-
ally incentivise corporate wrongdoing.6In many cases, its economic costs may
outweigh its benefits.7Perhaps for this reason, and others I will discuss, propo-
nents of corporate criminal liability more commonly defend the doctrine on
non-instrumental grounds. In particular, they argue that the corporate entity is
a morally responsible agent in its own right and is, for that reason, deserving of
(or at least eligible for) punishment. I call this the ‘Agency Defence’, and as I
will show, it is part of any attempt to accommodate corporate cr iminal liability
within mainstream punishment theory.
In this article I argue that the Agency Defence creates a dilemma: it provides
a strong justification for giving human rights to corporations.8This result fol-
lows from premises underlying mainstream theories of punishment and human
rights, respectively. The task of this paper is to identify these premises and show
– in principle and in practice – how their conjunction endorses human rights
for corporations. I briefly introduce the argument here.
With respect to punishment, mainstream theories treat moral responsibility,
and therefore moral agency, as a necessary condition for criminal liability. On
this view, the moral agency of corporations is predicate to their being cr iminally
punished. With respect to human rights, according to what Joseph Raz calls the
‘traditional’ account,9moral agency is not only a necessary but also a sufficient
condition for being a human rights holder. If one adopts this traditional view,
the moral agency of corporations is predicate to their being awarded human
rights. Thus, in each case, whether corporations should be criminally liable
and whether they should get human rights is seen to turn, in significant part,
on whether they exhibit moral agency.
Corporate Fault a Faulty Notion?: The Case of Corporate Mens Rea’ (1999) 79 BUL Rev
355; V. Khanna, ‘Corporate Cr iminal Liability: What Purpose Does It Serve?’ (1996) 109 Harv
L Rev 1477; D. Fischel and A. Sykes, ‘Corporate Cr ime’ (1996) 25 JLS 319; J. Coffee, ‘“No
Soul to Damn, No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate
Punishment’ (1981) 79 Mich L Rev 386.
4 P. Robinson and J. Darley, ‘Does Criminal Law Deter? A Behavioural Science Investigation’
(2004) 24 OJLS 173, 173.
5 J. Baker, ‘Reforming Corporations Through Threats of Federal Prosecution’(2004) 89 Cor nell
L Rev 310, 334; G. Geis and J. DiMento, ‘Empir ical Evidence and the Legal Doctrine of
Corporate Criminal Liability’ (2002) 29 Am J Crim L 341; Khanna, ‘What Pur pose Does It
Serve’ n 3 above, 1477.
6 A. Hamdani and A. Klement, ‘Cor porate Crime and Deterrence’ (2008) 61 Stanford L Rev
271; J. Arlen, ‘The Potentially Perverse Effects of Cor porate Criminal Liability’ (1994) 23 JLS
833. See also V. Khanna, ‘Corporate Cr ime Legislation: A Political Economy Analysis’ (2004)
82 WashUL Rev 95, 96; J. Rakoff, ‘The Financial Crisis: Why Have No High-Level Executives
Been Prosecuted?’ New York Review of Books 9January 2014, 1-2.
7 Fischel and Sykes, n 3 above; J. Coffee, ‘Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the
Disappearing Tort/Crime Distinction in American Law’ (1991) 71 BUL Rev 193, 196.
8 Throughout this paper, I use ‘corporation’ in its colloquial sense to refer to business enterprises
generally, including publicand pr ivatelimited liability companies and var ious forms of partner-
ship. The otherwise meaningful distinctions between these forms of business enterprise are not
relevant here.
9 J. Raz, ‘Human Rights Without Foundations’ in S.Besson and J. Tasioulas (eds), The Philosophy
of International Law (Oxford: OUP, 2010) 379.
256 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(2) MLR 255–284
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