The Assessment of Corporate Criminal Liability on the Basis of Corporate Identity: An Analysis
48 Pages Posted: 8 Aug 2013 Last revised: 10 Aug 2013
Date Written: June 1, 1998
Current theories of corporate criminal liability in Canada and the U.K. focus upon the individuals who make up an organization. However this approach, called the identification doctrine, has its limitations, especially when employed in the context of large, decentralized organizations. The present article examines a different basis for liability, proposed by some scholars, which concentrates on the organization itself. It is believed that this form of liability could enhance both the effectiveness and the fairness of the current system.
The article is divided into two parts. In the first part, the author provides a synthesis of the work of some of the main advocates of a "corporate" criminal liability. From this overview, she argues that it is conceptually possible and philosophically justifiable to treat organizations as subjects of criminal law. Drawing on the contributions of scholars, the author identifies the characteristics which enable organizations to be viewed as intentional actors, accountable for their actions. She concludes by examining some of the justifications for recourse to a organizationally defined basis of liability.
The second part of the article takes the concept of a "corporate" intentional actor and applies it to the traditional analysis of the conditions required for the imposing of criminal liability. The author retains the traditional division of an offense into actus reus and mens rea elements because any novel concept of corporate liability will nonetheless be incorporated into the existing body of offenses. In addition, examining how it functions within the current system serves to demonstrate the proposed concept's strengths and weaknesses. The author ultimately concludes that because "corporate" liability reflects aspects of corporate culture not captured by the current system, its inclusion would contribute to the development of corporate criminal law.
Keywords: Criminal Law Theory, Corporate Criminal Law, Collective Responsibility, Moral Agency, Corporate Intention
Suggested Citation: Suggested Citation