At Cross Purposes: The Responsible Subject, Organizational Reality and the Criminal Law
Jennifer A Quaid, "At Cross Purposes: Abstract Individualism, Organizational Reality and the Criminal Law," in Tracy Isaacs, Kendy Hess & Violetta Igneski, eds, Collectivity: Ontology, Ethics, and Social Justice, Lanham, MD: Rowman & Littlefield, 2018, 81-106.
Posted: 27 Jul 2018 Last revised: 11 May 2020
Date Written: May 1, 2018
In recent years, much attention has been directed at how best to hold business organizations criminally accountable when their operations cause large-scale disasters. Though much has been made of legal reforms allowing for proof of liability to be gleaned from a plurality of individuals or collective sources like culture, actual prosecutions still rely almost exclusively on imputation, an approach that applies very poorly to large, complex organizations. Nowhere has this been more painfully evident than in the failed efforts at accountability for the tragic train derailment in Lac-Mégantic, Québec. While many factors affect enforcement against organizations, only one is embedded in the fabric of the criminal law. It flows from the structural tension generated by applying the criminal law to organizations without clearly setting out why they merit treatment as distinct responsible subjects. This omission leaves an analytical gap that is filled, imperfectly, by human characteristics. This means imputation the easiest method of proving guilt even where a collective basis of liability exists in the law. I argue that to break with the habit of reducing collective behaviour into individual acts and intentions, we must build an organizational variant of the responsible subject that better supports an organizational locus of analysis needed to faithfully capture the nature and extent of collective wrongdoing. As I explain, this in turn would lead to better accountability in those instances, like Lac-Mégantic, where collective responsibility is most desperately needed.
Keywords: corporate criminal liability, responsible agency, group agency, collective fault, criminal negligence, Lac-Mégantic
JEL Classification: K14
Suggested Citation: Suggested Citation