Corporations as Moral Agents: Trade‐Offs in Criminal Liability and Human Rights for Corporations

Abstract

AbstractThis article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly‐reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade‐offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.