"If You Tickle Us....": How Corporations Can Be Moral Agents Without Being Persons

Journal of Value Inquiry

Volumn 47, Issue 3, 2013, Pages 319-335

  Hess, Kendy M ^a  

^a Department of Biology   (United States)

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[No Author keywords available]

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EID: 84883447002     PISSN: 00225363     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10790-013-9391-z     Document Type: Article

References (59)

1. Santa Clara County v. Southern Pacific Railroad, 118 US 394 (1886).
2. Republican presidential candidate Mitt Romney made this unfortunate remark during a debate (Philip Rucker, "Mitt Romney says 'corporations are people' at Iowa State Fair," Washington Post, August 11, 2011). It is often taken out of context, but Romney's intended meaning is revealing. Romney opposed raising corporate taxes because "Corporations are people, my friend... Everything corporations earn ultimately goes to people." Relying on the fact that corporations are "made of people," Romney wants to conclude that whatever happens to the corporation happens to the people - that harms to corporations harm members, etc. This is a modern version of the fallacy of composition. Romney's blithe equivalence between the corporation and its members is typical of much contemporary discussion; Scalia follows the same logic in the Citizens United concurrence discussed in Section 2. It is an unfortunate, dangerous, and prevalent error.
3. See http://createrealdemocracy.blogspot.com/2012/01/ill-believe-corporation-is-person-when.html for a fascinating series of similar suggestions, most of which support the thesis of this article.
4. See, e.g., Nani L. Ranken, "Corporations as Persons: Objections to Goodpaster's 'Principle of Moral Projection'," Journal of Business Ethics 6: 633-637 (1987)
5. Seumas Miller, "Collective Moral Responsibility: An Individualist Account," Midwest Studies in Philosophy 30: 176-193 (2006). Proponents of corporate moral agency have (unfortunately) made the same assumption, albeit without drawing the negative conclusion: see Peter A. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984) and Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011).
6. See Rita C. Manning, "Corporate Responsibility and Corporate Personhood," Journal of Business Ethics 3: 77-84 (1984), for a thorough treatment of a similar claim, essentially that corporations can be moral agents without being "moral persons" in the sense established in the business ethics literature (discussed in Section 3 below).
7. Among other things, this account differs from those provided by Peter French, op cit.,
8. Christian List and Philip Pettit, op cit.,
9. and other holists in addressing the metaphysics of the corporate entity, and in relying on standard accounts of intentionality, agency, and moral agency rather than special "collective" or "corporate" versions. What my account shares with those of French, List, and Pettit is the holist claim that the corporate entity exists and has the capacities for intentionality, action, etc. in its own right. In this, my account differs even more substantially from the quasi-individualist accounts presented by Margaret Gilbert, On Social Facts (Princeton, NJ: Princeton University Press, 1989), Seumas Miller (op cit.), and others.
10. See Kendy M. Hess, "The Free Will of Corporations (and Other Collectives)," Philosophical Studies (2013), DOI 10.1007/s11098-013-0128-4, especially Notes 1, 5, 9, and 13, for a more extended comparison to these and other accounts. Regarding individualist and holist accounts more generally
11. see David Copp, "On the Agency of Certain Collective Entities: An Argument from 'Normative Autonomy'," Midwest Studies in Philosophy 30: 194-221 (2006)
12. and "The Collective Moral Autonomy Thesis," Journal of Social Philosophy 38(3): 369-388 (2007)
13. Tracy Isaacs, Moral Responsibility in Collective Contexts (Oxford: Oxford University Press, 2011)
14. Seumas Miller, Social Action: A Teleological Account (Cambridge: Cambridge University Press, 2001)
15. and "Against the Collective Moral Autonomy Thesis," Journal of Social Philosophy 38(3): 389-409 (2007)
16. Pekka Mäkelä, "Collective Agents and Moral Responsibility," Journal of Social Philosophy 38(3): 456-468 (2007)
17. Jan Narveson, "Collective Responsibility," The Journal of Ethics 6(2): 179-198 (2002)
18. Carole Rovane, The Bounds of Agency: An Essay in Revisionary Metaphysics (Princeton, NJ: Princeton University Press, 1998).
19. See Hess 2013, op cit. regarding the roles played by individual member beliefs and desires;
20. see especially Section 4, for a more detailed discussion of the relative contributions of corporate structures and individual member beliefs and desires.
21. See Hess 2013, op cit. (especially Note 4 and the accompanying text), and Kendy M. Hess, "Because They Can," Midwest Studies (forthcoming 2014) for a more extended discussion of the claim that corporate commitments qualify as beliefs and desires on standard accounts.
22. For the sake of simplicity, in this article I speak only of literal business corporations and I speak as if all such corporations qualify as moral agents. This is imprecise in two ways. First, there are literal corporations that will not meet the requirements for a "corporate entity" and thus not qualify as moral agents; for any existing group, it will always be an empirical question whether that group constitutes a corporate entity, though the vast majority of business corporations will qualify. Second, while such entities are commonly found in the business arena, they also appear in education (colleges, universities), government (administrations, NGOs), religion (churches, religious orders), and war (units and branches of the military).
23. Rovane, op cit., p. 23.
24. See Section 4 of Hess 2013, op cit., regarding the "origin" of corporate beliefs and desires.
25. See List and Pettit, op cit., and related literature by the authors for an exhaustive discussion of the discursive dilemma. The point here is both simpler and broader, and not restricted to the technical situations they address.
26. Note that none of the existing accounts of corporate agency would recognize the latter commitments as corporate beliefs or desires. French would reject them because they did not arise through formally prescribed channels (the "CID structure"); List and Pettit would reject them because they weren't intentionally arrived at; and Gilbert and Miller wouldn't recognize ACME as a collective agent in the first place because the members are not unified by a joint commitment or a collective end (respectively).
27. See Isaacs, op cit., for a general discussion regarding the moral responsibility of individual members in such settings, albeit one that excuses low-ranking members
28. see Isaacs 2013, op cit., Note 11 regarding the moral responsibility of individual members on this account, for one that does not.
29. See Seumas Miller and Pekka Mäkelä, "The Collectivist Approach to Collective Moral Responsibility," Metaphilosophy 36(5): 634-651 (2005).
30. see Isaacs 2013, op cit. (especially Notes 5 and 13), regarding some of the metaphysics. This is in the same spirit as List and Pettit's observation that corporate commitments "supervene holistically" (List and Pettit, op cit., p. 127), but List and Pettit claim that commitments supervene on member preferences. On the account presented here, corporate commitments coincide with member activity regardless of member preferences. This seems preferable, as member activity is capable of generating all kinds of effective corporate commitments which have nothing to do with member preferences.
31. Hess, "The Modern Corporation as Moral Agent: The Capacity for 'Thought' and a 'First-Person Perspective'," Southwest Philosophy Review 26(1): 61-69 (2010)
32. Gunnar Bjornsson and Kendy Hess, "Corporate Crocodile Tears? On the Reactive Attitudes of Corporations" (manuscript)
33. and Hess 2013, op cit.
34. Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).
35. Caitlin MacNeal, "Citizens United Constitutional Amendments Introduced in the Senate." Huffington Post, June 20, 2013.
36. Citizens United, slip op. 1, 7, 8.
37. Citizens United, slip op. 8.
38. See Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (York, NY: Free Press, 2004) for an excellent history of the rise of the modern corporation. See also Justice Steven's dissent in Citizens United regarding some of the legal history.
39. Obviously, both the legal situation and the socio-political situation were more complicated than this. In addition to Bakan, op cit.
40. see David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997) regarding legal and social treatments of personhood - especially Chapter 1, regarding the "personification" of inanimate objects like bridges.
41. th Amendment protections in Santa Clara. In fact, they explicitly refused to address the question; see the quotation at the beginning of this article.
42. See brief overview in Justice Stevens' dissent, in Citizens United - specifically his response to the "third fulcrum" of the majority opinion (slip op. 34-39).
43. List and Pettit 2011, op cit., does not address moral issues, though of course some of their claims have implications for the debate about moral agency.
44. See e.g. Peter French, "The Corporation as a Moral Person," American Philosophical Quarterly 16(3): 297-317 (1979) in addition to his 1984
45. Michael Keeley, "Organizations as Non-Persons," Journal of Value Inquiry 15: 149-155 (1981)
46. Kenneth E. Goodpaster, "The Concept of Corporate Responsibility," Journal of Business Ethics 2(1): 1-22 (1983)
47. Manuel Velasquez, "Why Corporations Are Not Responsible for Anything They Do," Business and Professional Ethics Journal 2: 1-18 (1983).
48. Patricia Werhane, "Formal Organizations, Economic Freedom and Moral Agency," Journal of Value Inquiry 14: 43-50 (1980) is an exception, treating with "moral agency" as such, and Manning 1984, op cit., explicitly criticizes this conflation.
49. French 1984, op cit., pp. 165, 170.
50. See List and Pettit, op cit., Chapter 8, for an example of this approach.
51. See French 1984, op cit., Chapters 3 and 6 for discussions of the concept and history of personhood, and the development of his standard for the "moral person." French discusses Rawls on pp. 33-34.
52. For example, while Rawls "assumes" that "each person beyond a certain age... develops of a sense of justice," this sense of justice disappears when he lays out the requirements for participation in the Original Position. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 46, 17-22. Even the sense of justice is ultimately justified in terms of rational autonomy Again
53. see List and Pettit, op cit., Chapter 8 for an application of this approach.
54. Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000).
55. See Robert E. Goodin, "Vulnerabilities and Responsibilities: An Ethical Defense of the Welfare state," The American Political Science Review 79(3): 775-787 (1985), especially pp. 779-782, for a discussion of vulnerability as a source of political obligation.
56. See Rovane 1998, op cit., Chapter 6, for a demonstration that the RPV is sufficient to anchor the socalled "first person perspective" commonly taken as necessary for agency, in the absence of an accompanying phenomenal point of view.
57. See Hess 2010, op cit., for the relevance of this distinction in the case of corporate entities.
58. FCC v. AT&T, No. 09-1279, 2011.
59. FCC, slip op. 8.