Denying Corporate Rights and Punishing Corporate Wrongs

Abstract

Scholars addressing the moral status of corporations are motivated by a pair of confl icting anxieties: If corporations are not moral agents, we will be unable to blame them for their wrongs. But if corporations are moral agents, we will have to recognize corporate moral rights, and the legal rights that fl ow therefrom. In early and under-appreciated work, Tom Donaldson sought to allay both concerns at once: Corporations, he argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do. This article offers a sympathetic critique of the Donaldsonian strategy. I argue that, as it has been elaborated, the strategy necessarily fails. Nonetheless the strategy embodies a worthy aim and so I seek to provide an alternative way to vindicate it.KEY WORDS: corporate personhood , corporate moral responsibility , corporate rights , moral agency , corporate criminal liability , Tom Donaldson T HE NOTION THAT CORPORATIONS are moral persons evokes consternation and anxiety, but so too does the notion that they are not. 1 Recognizing corporate moral personhood would seem to commit us to granting corporations rights that few think corporations should enjoy-rights to marry, 2 or rights of political participation, for example. 3 Yet denying corporate personhood would seem to limit our ability to treat corporations as responsible actors-worthy of praise when they do good, and censure, and possibly also punishment, when they do evil. In important and under-appreciated work, Tom Donaldson articulated a way out of this dilemma: Corporations, he argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do. 4 On Donaldson's ingenious account, then, we need not choose between recognizing corporate rights and punishing corporate wrongs; we can instead have it both ways.In this article, I draw inspiration from what I shall call the "Donaldsonian Strategy"-his worthy effort to thread the needle of moral personhood and moral agency by arriving at an account that denies corporations moral rights while preserving some notion of corporate moral responsibility. I nonetheless take issue with the execution of his account, as well as the accounts of others who attempt something like the Donaldsonian Strategy. In particular, I argue that the strategy is destined to fail,

How Values Ground Value Creation: The practical inference framework

“…Consider the value-heavy issue of the "moral agency" of corporations. Business ethics journals regularly feature articles that investigate whether the corporation is a full-fledged "moral agent" (Sepinwall, 2015). Such articles investigate whether a corporation can enjoy the moral right of free political expression or religious freedom.…”

Donaldsonian Themes: A Commentary

“…Nonetheless, she worries about the approach I took, and criticizes the distinction between moral agency and “personhood” that I employed then. As it was articulated, she concludes, my strategy ultimately fails (Sepinwall, 2015: 517). I’m flattered that Professor Sepinwall has named an entire philosophical approach, the “Donaldsonian Strategy,” after me.…”

“…Amy Sepinwall offers us a detailed, well-plotted map of options in the moral agent/moral person controversy in her article “Denying Corporate Rights and Punishing Corporate Wrongs” (2015). Her painstaking analysis of moral options in the context of legal reality heightens the sophistication of agency debate far beyond the level of the 1980s conversation in which I engaged.…”

“…Sepinwall summarizes my strategy as follows: “Corporations, he [Donaldson] argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do” (2015: 517). So far so good.…”

“…This is what, as Sepinwall explains, List & Pettit (2011) recognize, and what Werhane (1985) attempts, albeit according to Sepinwall with defects. It is what Sepinwall herself does when, for example, she suggests that “it might be the case that protecting the rights of the corporation’s individual members nonetheless requires that we treat the corporation as if it has at least some of these rights” (2015: 524). And it is what I do in Corporations when I use the social contract argument to conclude that corporations have the right to act as a single entity under the law; and later in The Ethics of International Business when I argue that corporations have some correlative duties associated with human rights, such as to avoid depriving people of the object of a human right (Donaldson, 1989).…”