Theseus, Incorporated: Philosophy of Mind, Material Constitution, and the Ontology of the Criminal Law

Abstract

Recent attacks on corporate criminal liability employ reductionistic reasoning familiar to the exclusion problem of mental causation and eliminative solutions to the problem of material constitution. Recent defenses of non-reductive physicalism and other solutions to the problem of material constitution, however, offer a way for the criminal law to make sense of corporate properties that are multiply realizable in the actions of a corporation’s employees. The criminal law is an appropriate vehicle for correcting replacement-of-employees-survivable, reasons-responsive teleological structures that contribute to the commission of crimes by a corporation’s employees. Group psychology has good claim to be a legitimate special science, and the criminal law presupposes higher-order entities and rejects the sort of exclusion principle that would put different-level entities in competition. However, corporate criminal liability should be subject to a good-faith-compliance (“bad apple”) defense that would preclude corporate punishment if a corporation can show that its policies, custom, climate, and culture did not contribute to a crime. Various objections to corporate criminal liability, rooted in various theories of punishment, can be resisted. The criminal law can act against corporate existence, liberty, property, and reputation just as it can act against these interests of individuals. The teleology of a corporate culture can be deterred, embody moral norms, instantiate virtues and vices, and receive communication just as can the mind of a conscious human being. Corporations with changing culture have the functional equivalent of emotions like remorse. Corporate culture lies downstream of presumably-free human actions in a way analogous to the way character traits for which most libertarians would allow individuals to be responsible lie downstream of presumably-free earlier actions. The genuine existence of corporations and corporate actions, while consistent with corporate rights or corporate “personhood,” does not require them in all contexts and for all purposes. Theories of corporate law such as the nexus of contracts and shareholder-, director-, or stakeholder-primacy, while relevant to the distribution of control and/or benefits within a corporation and the extent to which such law should be mandatory or simply a default rule, do not undermine the justification for corporate punishment here.