Making Sense of Corporate Criminals: A Tentative Taxonomy

Abstract

This article proposes a taxonomy to delineate different strategies defending the extension of an ostensibly moralized practice (the criminal law) to ostensibly non-moral agents (corporations). My proposal is to classify strategies for justifying corporate criminal law into three groups: (1) Economic theories reject the unique moral character of criminal law, treating corporate criminal liability as no different than any other type of enforcement regime; (2) moral agency theories identify characteristics necessary for praise and blame and then consider whether corporate agents are capable of satisfying them; and (3) political theories take the criminal law to be a uniquely moralized legal institution, but then deny that corporate criminal liability thereby requires an account of corporate moral responsibility. While the focus of this article is to trace the contours of this conceptual distinction, I offer some tentative reasons to think that the third category — political theories — has gone undertheorized but nevertheless offers the most promising avenue for an ultimate justification of corporate criminal law.

This article appears as part of a symposium on the Ethics of Corporate Moral Agency, organized by the Georgetown Institute for the Study of Markets and Ethics and the Carol and Lawrence Zicklin Center for Business Ethics at Wharton.

Keywords: corporate crime, moral philosophy, political philosophy, corporations, criminal law, business law