39 Pages Posted: 27 Sep 2012 Last revised: 28 Jan 2013
Date Written: October 2012
Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. In this paper, I use examples from the frontiers of international criminal justice to criticize all sides of these debates. In particular, I harness the latent possibility of prosecuting corporate actors for the pillage of natural resources and for complicity through the supply of weapons, to highlight the shortcomings of corporate criminal theory to date. Throughout, I draw on principles derived from philosophical and legal pragmatism to reveal a set of recurring analytical flaws in this literature. These include: a tendency to presuppose a perfect single jurisdiction that overlooks globalization, the blind projection of local theories of corporate criminal responsibility onto global corporate practices; and a perspective that sometimes seems insensitive to the plight of the many who have fallen victim to corporate crime in the developing world. To begin anew, we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit.
Keywords: legal pragmatism, corporate criminal liability, corporate criminal theory, international criminal justice, pillage, complicity, corporate responsibility for international crimes
Suggested Citation: Suggested Citation
Stewart, James G., A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity (October 2012). NYU School of Law, Public Law Research Paper No. 12-54. Available at SSRN: https://ssrn.com/abstract=2152682 or http://dx.doi.org/10.2139/ssrn.2152682