Why Corporate Deviance Is Not Treated As a Crime

Why Corporate Deviance Is Not Treated As A Crime

What are we to make of the fact that a huge multinational corporation, such as Shell, can despoil the environment, be complicit inthe impoverishment and death of human beings and not suffer any serious consequences? What are we to make of the fact that itsdirectors, managers and stockholders continue to be welcome in the 'best' circles, clubs, hotels, spas and neighbourhoods,despite the fact that their riches and prestige stem, in part, from the heinous conduct of Shell in Nigeria and in many other locales?What are we to make of the fact that the directors, managers and stockholders of the Holmes Foundry business have never beenheld to account personally for the egregious disregard for human life and consequent harm which their profiteering spawned? Whatare we to make of the fact that, in sharp contrast, John Clarke and his colleagues were treated as if they were social vermin whenthey used the means at their disposal to help those in need rather than just to pursue luxuries for themselves? What are we tomake of the fact that they are being made personally responsible for the conduct of their organization, facing the possibility ofserious jail time, something which the directors, managers and owners of Shell and Holmes have never had to confront?

We are to understand that these anti-human, unequal results are structured into our criminal justice system. It is designed toachieve these results. They are not aberrations.

Our criminal justice system is there to serve the political economic scheme we have. That scheme, of course, is capitalist relationsof production. Capitalism is about the private accumulation of socially produced wealth. The owners of the means of production arefew. Very few. 1% of Canadians own about 20% of all of Canada's wealth; the top10% of wealth owners own 54% of the wealth; thetop 20% own 72% of the wealth, while the bottom 40% of Canadians share 1% of the total wealth of the country. The very few whoown most of the wealth-- and control much more-- appropriate the surplus value of the goods and services produced by the labour ofthe others who must work for a living. Not only is this scheme about the private accumulation by the few at the expense of themany, it also is about the capacity to exercise power. The employing and employed classes have a different relation to productiveactivities.

The working classes, by definition, do not own the means of production and do not get to keep the yield of their labour. All they getis a wage for their contribution. They are totally dependent on the 'goodwill' of their employers and potential employers. And, noteveryone has anything like a steady wage-earning job. These people must look to other sources for their survival. Family andcommunity support, as well as governmental distributions, become central to people's very existence. In this setting, resistanceand rebellion is as natural as breathing. It may take the form of so-called anti-social conduct which, often, is characterized ascriminal. At the other end of the wealth chain, the problems are of a different order.

The pressure on wealth owners is not physical survival, but how to win out against competitors and how to remain profitable whenthere is no market for the surplus value, that is, for the goods and services they have accumulated. This leads to the reduction ofproductive activities to the detriment of those who are dependent on the maintenance of capitalists' investments; to vigorous,sometimes illegal, attacks on competitors; to assaults on the wages and conditions of workers; to abuses of 'free' goods, that is,abuses of the non-owned assets provided by nature, and the like.

In short, the logic of the system spawns a variety of anti-social behaviours. The kind of deviance engaged-in is largely, albeit notcompletely, determined by the class position of the wrongdoer. The question remains as to why some of this conduct'the conductof the poor-- is punished so severely, whereas other behaviour-that of the rich-- is treated as if it were benign, despite its far moreharmful consequences A skeletal explanation follows.

Capitalism does not present itself as a brutal system of private accumulation for its own sake. Rather, it is claimed to be a naturalway of life. The characterization of the system we are all deemed to accept is that we are all motivated to engage in exchanges ofwhat we are good at producing-because of our innate talents and our personal resources - for things which we want and which areproduced by others just like us who, in turn, are peculiarly good at the production of those wanted things. We are asked to assumethat the ensuing market for goods and services is natural. More directly significant to our inquiry is the assumption which goes withthis demanded belief in the merit and inevitability of a market economy. It is that such an economy is comprised by a hugenumbers of individuals, none of whom is in a position to dictate to anyone else what the price of a particular good or service is to be.We all are deemed to have an equal opportunity to participate in the game and if, therefore, one of us is in a monopolistic position,that is, can dictate to others what the price of a good or service is to be, this is to be treated as a deformation of the system andthe law should step in to correct it. Competition is the essence of the system.

More: competition by individuals is the key to the scheme. In that way, all of us will be rewarded for our own efforts; freedom isguaranteed because no one will tell us how to use our personal talents and resources; each one of us will decide for ourselves howto maximize our resources and resourcefulness; each one of us will decide for ourselves what it is that we would like to purchasefrom other producers; no co-ordinator will need to plan and organize productive activities; no co-ordinator or planner is necessary totell us what we should ask from others. In sum, the idealized version of market capitalism allows its adherents to claim that it leadsto the efficient uses of our aggregate talents and resources and to great freedom for individual decision-making.

Nowhere in this self-characterization is there a hint that the system is there to accumulate wealth by the few, to maintain power forthe few. Nowhere is there an acknowledgment that the sharp division of wealth which has existed throughout the history ofcapitalism turns the idea that we can all participate in the market as equals into a fantasy. Nowhere is there room for the easilyobservable truth that we live in a class--divided society where participation in market activities by the majority of people is notvoluntary - as the model specifies - but coerced. Nowhere is there even a suggestion that the majority of the population must play themarket game as less than equals.

Key to the holding out of what the system can deliver by way of economic welfare and political freedom, then, is the pretence thatall individuals are equally sovereign and that the sovereign individual is at the centre of its concerns and operations. The individual isentitled to keep the proceeds of her endeavours and, as a sovereign decision-maker, is to be responsible for all the actions sheundertakes. Self-reliance is the lynchpin justification for the system as it presents itself. This is reflected in law and, moreparticularly, in criminal law.

In law, it is the individual who owns resources. Ownership means that the owner of private property may deploy that property as shedecides; no one can tell her what to do with it; she has a right to exclude every other individual or the State from its use. Theindividual owning property owes no responsibility to anyone (except herself) as to how to use or not to use the property. Herindividuality, her private ownership, obligates her to no one, not her family, not her friends, not her community. She is an unlinkedperson. She enters into contracts (exchanges) as an individual with equally sovereign, equally unlinked, individuals and, therefore,the law is not to inquire into the wisdom of any deal so made. Here we come to the nub of the problem.

As wealth is so unequally divided, there always is an abundance of competitors for any one job created by the owners of wealth.The exchange of wages for work is one which favours the employer as it can choose between many qualified persons and willcontract with the lowest bidder. This is why workers have been forced to form trade unions: the primary purpose of a trade union isto diminish competition between workers for scarce jobs. This is why the law represses trade unions so forcibly and frequently:trade unions' efforts to undermine individual contract-making goes against the very grain of market capitalism This is why workershave had to use the one thing which they have in abundance: numbers. They have had to resort to the majoritarian electoral politicalprocesses which they helped develop. Through electoral participation, often supported by 'illegal' concerted actions, they have wonsome legal rights to form trade unions and some minimal guarantees in respect of their conditions of work. They have taken somematters out of competition. By definition, these gains were hard to win and remain under tremendous pressure: the employingclasses are always keen to return to the individual competitive model because their economic power guarantees them victory in thatsetting. The very fact that all of these struggles have been, and remain, necessary underlines the fact that individualism, rather thancollectivism, is the centre of our legal/political system.

Individualism favours the rich and is promoted by law.

So it is in criminal law. The most crucial feature of criminal law is that the State is to use this most coercive power - after all, whenjustified by criminal law, the State can take away people's liberty, remove them from the country, and, in some jurisdictions, putthem to death - whenever it is clear that an individual, as an individual, has transgressed against rules which, the State claims,reflect our shared morality. There are two aspects of this formulation which arrest attention.

First, to attract the wrath of the criminal law, the impugned conduct must be that of an individual who intended to engage in thatconduct. The emphasis is on the responsibility of individuals for their actions. Underlying this premiss is the notion basic to theidealized market capitalism model, namely that we are all sovereign actors, capable of exercising our free will and responsible forhow we do exercise it. This allows us to excuse people who do not have the mental capacity to make free choices; it permits us toconsider defences such as self-defence, provocation and, in very rare circumstances, necessity. All such defences andjustifications are based on the idea that the individual should not be held responsible for an apparent breach of our rules becausesuch a breach was not committed with the evil intent of individuals who deserve punishment. But, remarkably, the criminal justicesystem does not tolerate the argument that lack of money was the reason for the wrongful act to be raised as a defence. The factthat the system has left some people without the means of survival and/or an appreciation of the intrinsic merit of the dominantsocial mores cannot be considered as a legal justification when a desperately impecunious person is charged with a crime. Afterall, it would throw doubt on the contention that we are all truly equal, with equal opportunities; it would cause us to question theappropriateness of seeing the world as constituted by atomized individuals; it might lead us to think about the merit of marketcapitalism, a system which systematically leaves a huge number of people dependent, rather than sovereign.

This leads to the second basic feature of this individualistically-based criminal law scheme. How has it come about that the divisionof property and the division between the classes is ignored by the criminal justice system? What is this shared morality which itpurports to defend?

It turns out that there is no easy way to determine what this shared morality, worthy of defence by resort to State coercion, is. Weare clear that killing without an appropriate defence of the kind listed above is wrong; so also are physical assaults, including sexualassaults. And even these horrible acts are not always seen to be wrong. For instance, on occasions, citizens are told by theirgovernment that they have to kill to serve the greater good. This is how we justify every war. We had to bomb Serbia to saveKosovars and democracy; we had to bomb Vietnam to save it from its barbarous masses, etc. And, when people question themorality of such orders, they are often treated as criminals; to avoid this fate they have to prove that they oppose killing more thanthe rest of us - by showing that their conscientious objection is based on some deeply held belief system which transcends ournormal 'shared' morality.

Shared morality is, then, an elusive concept. Indeed, this is why it is undefined. If we were to define it - other than by shibbolets,such as 'we will know what is right and wrong when we are faced with the question' , the basic response of leading conventionalthinkers like Lord Devlin - the definitional criteria could be confronted head-on. This cannot be permitted for it quickly would becomeclear that the basis for criminalizing some conduct and not other is founded on quicksand. Without teasing out the argument in full,the point is easily made by noting that some crimes on our books look ludicrous to-day although, not so long ago, they too weredefended as upholding the undefined shared morality of our society.

Witchcraft was a severely punished offence, not so long ago ; so too was gambling which, to-day is one of government' s favouritepast times, while it also is the lifeblood of the insurance industry (which, therefore, goes to extraordinarily lengths to describe itselfas being based on actuarial science) and, it could easily be argued, is the core of what all the elites engage-in when they play thestock markets. Note here - lest it be thought that I am being too cute for words - that the stock markets differentiate betweenwell-regulated markets of the very rich where the regulation takes some of the gamble out of the system by forcing more disclosuresand the markets for the poorer elites, the so-called penny stock markets, which are known for their high risks, that is, markets inwhich the odds are longer and the losses and wins correspondingly higher, just as they are at race meetings where there is apaucity of information on which to base one' s bets. Gambling no longer offends our sense of morality or, better, it does not offendthe morality of those who tell us what our shared morality is.

If these examples are deemed to be straw ones because they refer to anachronistic situations, here are some more topical ones. Itis a crime to use proscribed substances, i.e. drugs. Heroin and cocaine, marijuana and crack cocaine are out. People who usethese drugs and those who sell them are moral lepers. People who sell tobacco are not criminals. The harm their product useseasily exceeds that inflicted by that which arises out of the use of proscribed drugs. So, it cannot be the consequence of sellingthese drugs which causes us to wage policing wars on sellers and users. Somehow or another we are told that our ' sharedmorality' explains this absurd difference in treatment. It is absurd because it cannot be the case that the peddling of some sourcesof harm which lead to addiction and disease are morally more reprehensible than others which have the same impacts, often to agreater degree. On another playing field, we find that charging interest on loaned money, to the fullest extent that the competitivemarket allows for it, is considered a very respectable way of making money: who is more pompously self-righteous than a banker?Yet, only a short time ago ( in historical terms), usury - the charging of interest - was considered the most despicable of activities.How did our supposed shared morality change so much, so quickly? Or, to use the Holmes Foundry example, why is the plannedexposure of hundreds or thousands of workers to known health risks not perceived as a crime? Imagine an individual who holdsanother up with a gun and says:'Give me your wallet or I will take your life'. Does he offend our shared morality? Obviously so andthe brigand will be treated as a criminal. When Holmes Foundry and others of its ilk tell their workers:' We want you to work incontaminated conditions or take less pay to allow us to fix it up so that you can avoid death', are they not saying: 'Your money oryour life?' If so, why does this not offend our shared morality? Why is it not treated as a crime? The answer given, of course, isthat the workers did not have to accept the 'deal' - the very harmful deal - they made with their employer. But, this quick answerbegs the question: the deal made between employer and employee is hardly a deal between equals whose terms are, therefore, fair.

The undefined definition of shared morality turns out to have as its basic starting point the very pretence which justifies marketcapitalism. The shared morality which underpins the use of State coercive power that we call criminal law presumes that we are apolity of equals, that there is no class division which prevents the non-wealth owning classes from making voluntary, sovereignchoices. As this presumption is false, the so-called shared morality premiss is based on a falsehood and cannot support a coherentsystem of criminal law. The term 'shared morality' is not a scientific term, but a slogan which hides the highly politicized nature ofcharacterising behaviour as criminal or legitimate.