Grappling with injustice: Corporate crime, multinational business and interrogation of law in context
| Author | Kate Macdonald,Fiona Haines |
| Published date | 01 May 2021 |
| Date | 01 May 2021 |
| DOI | http://doi.org/10.1177/1362480619872267 |
| Subject Matter | Articles |
872267TCR0010.1177/1362480619872267Theoretical CriminologyHaines and Macdonald
research-article2019
Article
Theoretical Criminology
2021, Vol. 25(2) 284 –303
Grappling with injustice:
© The Author(s) 2019
Corporate crime, multinational
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business and interrogation of
https://doi.org/10.1177/1362480619872267
DOI: 10.1177/1362480619872267
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law in context
Fiona Haines
Kate Macdonald
University of Melbourne, Australia
Abstract
This article interrogates criminological ambivalence towards law as both essential in the
control of corporate crime and as an enabler of corporate harm. It argues we can make
sense of such tensions by seeing law—in its plurality of soft and hard forms—as constituent
elements within multiple fields of struggle, in which laws operate as tools wielded to
influence contested rules, and as rules governing regulatory struggles. This argument is
developed by bringing criminological analyses of the law’s role in business facilitation and
regulatory enforcement together with sociological analyses of ‘fields of struggle’. The
value of this approach in illuminating law’s ambiguous role in relation to corporate harm is
illustrated through two cases of multinational business activity in Indonesia.
Keywords
Corporate crime, fields of struggle, hard and soft law, multinational business, regimes
of permission
Law has an ambivalent presence in criminological analyses of corporate crime.1
Assumptions about the strength of law are implicit in claims that weak law and enforce-
ment are responsible for poor business conduct, and in associated calls for greater use of
Corresponding author:
Fiona Haines, Criminology, School of Social and Political Sciences, University of Melbourne, Parkville,
Victoria 3010, Australia.
Email: fsh@unimelb.edu.au
Haines and Macdonald
285
criminal penalties (Clinard and Yeager, 1980; Snider, 2000, 2009; Tombs, 2002). At the
international level, renewed demands for a treaty on business and human rights resonate
with such views, arguing that enforceable, black letter law enabled through a treaty could
address the harms perpetrated by multinational corporations (Business & Human Rights
Resource Centre, n.d.). In stark contrast, criminologists also call attention to law as vio-
lence (Rothe and Kauzlarich, 2016), comprising ‘regimes of permission’ (Whyte, 2014)
that legitimize harmful business practices. On this view, belief in law as the solution to
corporate crime is misplaced, overlooking the symbolic violence inherent within law and
legal practice that perpetuates the status quo (Bittle and Frauley, 2018). Law—usually
understood within such accounts as enabled by and enforced under state authority2—can
thus be understood as both the problem and the solution to corporate harm.
The central goal of this article is to interrogate such criminological ambivalence
towards law as both essential in the control of corporate crime and as an enabler of
corporate harm. While criminological analyses of enforcement typically focus on
binding forms of state-issued law (hard law), we are interested in both hard and soft
law (Abbott and Snidal, 2000). Soft law is not underpinned by coercive systems of
state enforcement, but nonetheless draws on institutionalized rules to establish an
‘explicit normative framework’ that claims authority over business conduct
(Finnemore and Toope, 2001: 743). We argue that we can make sense of criminologi-
cal ambivalence by seeing law—in its plurality of soft and hard forms—as part of
ongoing fields of struggle, in which laws operate as tools wielded to influence con-
tested rules, and as rules governing regulatory struggles.
This argument is developed by bringing criminological analyses of corporate and
white-collar crime, focused on law’s role in both enabling and controlling corporate
harm, together with sociological analyses of ‘fields of struggle’—a rich literature that
encompasses analyses of fields inspired by both Fligstein and McAdam (2011) and
Bourdieu (1987). The value of a fields approach in illuminating law’s ambiguous role in
relation to corporate harm is illustrated through two case studies in Indonesia: one of
company–community conflict in the palm oil sector and the other of a privately financed
forest conservation project developed under the United Nations’ REDD+3 programme.
Our analysis shows how a field perspective can identify productive ways of grappling
with law while recognizing the inherent tensions surrounding the role of law within
fields of regulatory struggle.
Field of struggle
The fields literature defines a field by reference to a struggle or contest over a specific
prized outcome (Levi Martin, 2003: 30), for example redress paid by a business to a
community stemming from a grievance. Robust empirical work (Dezaley and Madsen,
2012; Fligstein and McAdam, 2011; Levi Martin, 2003) allows for an interrogation of (in
this case) how law is used in a specific struggle and to what effect. From a field of strug-
gle perspective how law is drawn on to resist and assist community struggles against
corporate harm depends on where the struggle is taking place.
The concept of a field of struggle holds together the actors and the field. A field’s
constitution is actor-centric, in that the boundaries of the field are drawn by who is
286
Theoretical Criminology 25(2)
engaged in the struggle. Field theorists differ regarding the degree to which they
explicitly theorize the endogenous dynamics within a field of struggle as a product of
economic, cultural and political legacies and inequalities of the places within which a
struggle occurs (Emirbayer and Johnson, 2008; Liu and Emirbayer, 2016; Swartz,
2014). On our view, each actor engaged in a field of struggle moves within particular
social and geographical locations, and their motivations and capacities are embedded
in the distinctive history and structure of those places. The field of struggle is then
constituted within and across these multiple sites. This view resonates with a
Bourdieusian account of fields, which understands actors, and the resources they have
at their disposal, in light of their relative position in related fields that shape the eco-
nomic and cultural resources they can draw on in any given struggle. The purpose of
our analysis, though, is not to theorize the diversity of possible socio-spatial (or in this
case field) arrangements, or indeed their similarity (Jessop et al., 2008; Mayer, 2008),
but rather how actors might discipline and control multinational corporate behaviour
in their midst and so re-arrange the power dynamics in a field. This actor-centric ori-
entation towards the field resonates with Mayer’s (2008: 416) reflection on socio-
spatiality, arguing that ‘it is never the spatial form that acts, but rather social actors
who, embedded in particular (multidimensional) spatial forms and making use of (mul-
tidimensional) spatial forms, act’ and, to what effect.
How do rules govern the field of struggle?
Rules of the game govern the struggle, distribute power among actors in the field and are
shaped by interests of those (incumbents) who benefit from the status quo (Fligstein and
McAdam, 2011). Their composition is complex and dynamic. For Fligstein and McAdam
(2011; see also Fligstein and Vandebroeck, 2014: 109) the rules of the game are explicit
‘common knowledge’, understood and agreed to. This shared understanding means
‘actors understand what tactics are possible, legitimate and interpretable for each of the
roles in the field’ (Fligstein and McAdam, 2011: 4). Rules of the game advantage incum-
bent actors yet challengers abide them because of the stability they bring. Rules appear
relatively fixed, notwithstanding the jockeying for position and the way issues are
defined (see also Swartz, 2014). How these rules are constituted, though, is unstable and
can change, ‘as soon as the dominated [. . .] threaten to assemble the ingredients previ-
ously used for success’ (Levi Martin, 2003: 33).
Whereas rules are sometimes generated and contested within the boundaries of a given
field of struggle, rules that have been generated at other times and places can be brought
into the field by actors engaged in the struggle. While appropriation of these exogenous
rules can be used to maintain the status quo, they may also enable substantive change. The
rich debates that have emerged around fields generate important insights that aid explora-
tion of how contestation over rules can allow different actors to engage in the struggle,
and alter the character of what kinds of rules apply. The capacity to alter which rules apply
within a field of struggle has profound implications because the constitution and number
of rules at play in turn affect the constitutive nature and boundaries of the field (Fligstein
and McAdam, 2011; Goldstone and Useem, 2012; Levi Martin, 2003; Swartz, 2008,
2014). Different rules can either include or exclude specific actors as parties to a struggle.
Haines and Macdonald
287
This can materially affect the capacity to discipline multinational corporations, for exam-
ple using the Alien Tort Claim Statute (28 U.S.C. § 1350; ATS) in the United States.
Recent attempts to bring cases under this statute have foundered because of the inability
to establish that the affected communities have legal standing (Seibert-Fohr, 2018).
Moreover, different kinds of rules can extend the...
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