whole organizations. In effect, all those who use “deterrence” to justify the application of laws or norms to organizations are implicitly using a utilitarian justification. Application of criminal liability or ethical blame is justified by practical reasons, such as the complexity of attempting to discern which individual in a large organization is responsible for some improper activity. 150 An alternative formulation is that if an act is beneficial, the organization’s conduct is deemed “ethical” in a very specialized sense that is unrelated to traditional notions of moral judgment. Their reasoning is as follows: 1. Society will be benefited if organizations refrain from X . 2. If we pass laws – criminal or otherwise – to penalize organizations from doing X or to reward organizations for doing not- X , such organizations’ cost-benefit analysis will change the behavior of such organizations toward that objective. 3. Whether such penalties/rewards are applied in the context of social pressure, civil lawsuits, or criminal prosecution is simply a function of the tactic’s effectiveness. 4. The only test of the course of action is whether it does or does not achieve the outcome desired. Notice that such analysis never requires anyone to determine if the organization’s conduct was good or bad, moral or immoral, except as the outcome is or is not achieved. Two examples may demonstrate the application of this approach. Suppose a Sentencing Commission clearly believed that it would save investigative resources and result in better information if corporations voluntarily reported violations of law. Accordingly, under the Guidelines, self-reporting is taken as a mitigating circumstance that tends to reduce criminal fines. The expectation would be that corporations would be more likely to self-report if there were a clear financial benefit from doing so. If, in fact, such a provision did increase self-reporting, then it is appropriate; if it does not, then it is inappropriate. It would be odd to assert that failure to comply with this provision inherently makes a company immoral; it only means that it does not get the benefit of this circumstance. On the other hand, even without the action of the Sentencing Commission, some may attribute ethical value to self- reporting even if it does not result in any societal benefit. This suggests that the utilitarian approach is not necessarily identical to the common ethical intuition. Similarly, in recent California legislation, companies are required to describe the efforts they undertake to avoid the use of forced or child labor in their supply chains. 151 Strictly speaking, the law does not prohibit the use of 148 “Responsibility . . . is a device for achieving social control that does not depend on metaphysical or intrinsic qualities of ‘moral persons’ or human agents.” Corporations, Crime and Accountability at 133.
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