Sunday, March 22, 2015

Corporate Moral Responsibility: Who is taking the blame?



Fr. Damianus Abun, SVD, MBA, PhD
This article is being reviewed 


Introduction

We are discussing moral responsibility of a corporation. The concern of this particular subject is: who is responsible for what is going on in a corporation when things are going wrong. Is it individual person or the corporation to be blamed? This question is raised based on the nature of corporation itself, that a corporation is not the same as individual person who has the reason or knowledge and freedom because moral responsibility is referring to human only, not to anything other than human. Now who is then to be responsible when things go wrong in a corporation? This is the main issue that we need to understand in this topic. However, before going into the answer, we need to know first, when a certain act can be called good and bad, or in other words, when it can be called immoral or moral for someone to be responsible: either he/she is to be praised or to be blamed. The examination or judgment of certain act to be moral or immoral is always based on those standards, not on anything else. After knowing such requirement, then we proceed to evaluate whether an organization or corporation is subject to moral evaluation, and if so, then what qualifies it to be treated as a human person so that it can be held morally responsible for its actions and what disqualifies it in order not to be held morally responsible.



Moral Responsibility

Responsibility means something for which one is responsible to one’s act or the state or fact of being responsible, answerable, or accountable for something within one's power, control, or management. Related to the topic of ethics, responsibility would mean being accountable for what we are doing knowingly and freely. Moral responsibility means the extent to which the person or group deserves blame or punishment for what he/she has done or the group has done. In other words, she/he should not wash his/her hands and throw his/her moral responsibility to other people after he/she committed certain action. Be responsible and take the blame. Why? The person who performs an act knows why he acts and freely commits it, even though he knows his act is wrong but he/she does it and therefore she/he must take the full responsibility for his/her actions. Consequently the person deserves blame or punishment. Thus moral responsibility involves the notion of guilt or innocence (Articulo, 2005). Take an example, the employer was found to be violating the right of employees to privacy. The investigation committee recommend to the management that certain employer has to take the responsibility. As a result, the employer was punished and the employer was ordered to pay for moral damages.

The example mentioned above is a case of individual act, in a sense that the act was done by an individual person, not authorized by the management. Now our concern is, how if such act was done out of duty or she/he was authorized by the management as prescribed in his job description? Should the individual employee or the corporation take the responsibility? Should both wash their hands? The contention here is related to the extent of moral responsibility. Moral responsibility refers to both, individual and collective moral responsibility (Risser, 2014) because immoral act may be done either by individual person authorized by corporation or a group as a corporation. There can be a situation in which as a group, people knowingly and freely plan certain activity which brings disaster to a community. Moral responsibility becomes complicated here because it involves corporation. Corporation is only a legal entity created by law which is not an individual person that has no reason, knowledge and freedom or free will. How can we impose moral responsibility? Therefore, we have the reason to argue that the person or a group who has committed certain immoral act is not always responsible for their wrongful act. It has been the idea behind why some individual prefer to form a corporation than proprietorship because it has a veil to protect itself from legal responsibility. It is a veil given or protected by law. It has a limited liability. Now, what happen if certain corporation committed a crime? Who is the one taking the blame? Let us be clear that morality and law are two different things, in a sense that what is legal may not be always moral and what is moral may not be always legal. The issue on hand is moral issue and as a moral issue, there are simple requirements to be met if certain act is moral or immoral. In this regard, there must be criteria or requirements to be fulfilled for one or a group to be morally responsible, and thus we need to know when the person is morally responsible and when they are not. In order to determine moral responsibility, we need to know what makes an act right or wrong morally. This is important criteria to determine on which we can base our judgment and moral theories will help us in determining the extent of moral responsibility.  

Element of Moral Responsibility:  Knowledge and freedom

The first criteria to determine whether certain act is moral or immoral are knowledge and freedom (Sandel, 2014, cited from Immanuel Kant).  The person can be blamed or even praised if the person is acting out his knowledge and free will. The person acts knowingly and willingly despite the fact that he knows that such act will result to an injury. The person commits a crime and knows that it is wrong however he in fact freely intends to commit it. In such a case, the person act with deliberate intent and premeditated. Therefore, she/he is fully responsible for the crime and takes the full responsibility.

Reason allows us to act with a purpose and guide us to pursue the objective. With such reason, one can identify or differentiate right from wrong or good from bad and one can avoid it. Thus the absence of reason can reduce or mitigate the moral burden of the person who committed the act. It is the reality that many times a person acts out of fear or anger or external force. In other words, the person is not in full control of his acts. In such situation the person may or may not be morally responsible. When the person acts without being aware of the consequences or the wrongness of his act, cannot take full responsibility of his act.

Personally I consider knowledge as the first basis for moral judgement of certain act because we believe that only knowledge and freedom belong to human as a rational being. Consequently all acts performed by human must be based on his reason or knowledge and free will. This is what we call human act; the acts are specifically belonged to human, a rational being who has a freedom. Knowledge and freedom are the only things belong to human and the acts that are belonged to human act are the only the acts we can judge. Human should act based on the knowledge and his free will. This is to emphasize that there are other acts which we call act of man. The act of man does not necessarily belong to human but also belong to animal which is not necessarily motivated by reason but by instinct like animal. Example, eating, drinking, sleeping, is acts that are also belonged to animal. These acts are neutral to moral judgment. Therefore, we emphasize that it is only human act that we can judge morally. Before we judge certain whether it is immoral or immoral based on the motive, the means, the ends and consequence, we need to determine first if the act was done knowingly and freely. 

Taking Full Responsibility, Not Full Responsibility and Exempted.


Based on the discussion on the determining factors of moral responsibilities, then we have the idea that not all wrong act are done knowingly and freely. There are certain situations or circumstance that a certain person committed a certain act either with full knowledge and freedom or incomplete knowledge. It is here we need to examine when someone can be full responsible of his /her action or not fully responsible for his /her actions.

Someone is judged to be morally wrong and fully responsible for his/her actions when she/he does it with full knowledge and freedom. In other words, he/she does it knowingly and freely. The person has a complete knowledge of the wrongness of that act but he/she chooses to commit that act at his own choice and free will. In other words, the person committed such act intentionally, voluntarily and is a product of contemplation and deliberation. After establishing facts and determining that such act is done knowingly and freely, then the person has full responsibility and that person should be punished according to the crime he/she has committed. Example a manager knows that bribery is immoral, however, despite of such knowledge, he/she committed it.

However, there are circumstances in which a person commits certain act not because he/she has full knowledge. Despite of her lack of knowledge, she/he committed it because she /he might be pushed or forced by a certain circumstance that he/she has no choice but to do it. This is the case that we cannot throw all the responsibility and blame over that person. Given that situation, in the case of lack of knowledge of the correctness or rightness of the act, however, the person cannot also be removed from all moral responsibilities. The responsibility and blame are still with the person, however, to a lesser extent, not totally exempted because lack of knowledge is not sufficient enough to exempt the person from moral responsibility because he/she could still find ways to get information but he/she did not.

A person can be exempted totally if the person acts out of complete ignorance of the moral wrongness of the act, unintended result of a rightful act, result of an accident, coercion to the extent that the person’s reason cannot work and when such person has no capability to know if such act is right or wrong, good or bad. The first and the last is the case of a child or a crazy person who burn the house of their neighbor because of excitement to the see the beautiful fire. The case of unintended result is the case of double effect of certain act. This is the case in which a person performs certain act that lead to, either good or bad outcome. Example a doctor examines a pregnant mother who has cancer. The only way to deliver the baby is through caesarean; however, the result was the mother’s death.

Corporate Moral Responsibility

The Nature of Business Corporation

We need to know what the nature of business organizations is. Proper understanding is needed for us to determine if a corporation is morally responsible for their actions because corporation is not human but what qualifies it to be like human and therefore be responsible morally. It is commonly known that a business entity is an entity that is a group of people organized for some profitable or charitable purpose. Business entities include organizations such as corporations, partnerships, charities, trusts, and other forms of organization. Generally speaking, entrepreneurs incorporate their business in the state where they conduct their business (Perez, 2015). After incorporation, then the business is considered legal and it is now recognized as a legal business entity. It has a legal personality and now can legally pursue its business objectives as prescribed in their constitution and bylaws as approved by the Security of Exchange Commission. Thus the treatment to a corporation is now the same with the treatment of a person.  Business entities, just like individual persons, are subject to taxation and must file a tax return. Some business entities are exempt from federal income tax. These include non-profit charities, non- profit corporations. Business entities may be subjected to state income tax, depending on the laws of the state or states where they conduct business.  

There are different types of businesses and knowing different types of businesses could help us understand the nature of business. The classification of business is depending on the objective that it pursues. Therefore, first, we have sole proprietor. Sole proprietor is unincorporated businesses and it is usually owned by a single individual. There are no forms we need to fill out to start this type of business. The only thing you need to do is report your business income and expense. This is the easiest form of business to set up, and the easiest to dissolve. A Sole Proprietorship in the Philippines is also known as a "single proprietorship, A sole proprietorship is the most simple form of business and the easiest to register in the Philippines, through the Bureau of Trade Regulation and Consumer Protection (BTRCP) of the Department of Trade and Industry (DTI). It is owned by an individual who has full control or authority over all the assets, as well as personally answers all liabilities or losses. The fact that it is run by the individual means that it is highly flexible in which the owner retains absolute control. In relation to liability, the sole proprietorship has an unlimited liability as compared to corporation. This is in case if the owner put up his/her business not by her/his own capital but from loans either from individual person or from the banks. When the business bankrupt, then the owner has to pay all the money that he/she has loaned from other people or creditors. The creditors can also file case against the owner and run after the owner and can proceed not only against the assets and property of the business but also the properties of the owner. Therefore the laws do not differentiate between the owner and the business, both are the same.   
Second is corporation. A corporation is an entity which is separate from its owners. Therefore, unlike sole proprietorship, corporation has limited liability protection. The Corporation is formed under the laws of the state in which it is operating, with Articles of Incorporation. It has shareholders, and the shares may be privately or closely held, or they may be offered for sale to the public. Corporations are taxed separately from their owners at the corporate tax rate. Since corporations are separate entities, the debts and liabilities of the corporations are also separate from those of the owners. This separation is sometimes called a “corporate shield” or “corporate veil”. Corporate veil is a term used to describe the separation of the corporations from its owners. As a separate entity, the corporation is set up to shield its owners from personal liability for the debts and negligence of the business.  Since it is a separate entity, when the corporation is sued, the individual shareholders and officers cannot be brought into the lawsuit. But there are cases in which the corporation's officers and shareholders could be sued for negligence or for debts; the action of bringing in these shareholders to be sued is called "piercing the corporate veil" or "lifting the corporate veil."There are two instances when a corporation can be sued: first, in the case of fraud, in which the corporation was found to be a sham that was set up for the purpose of carrying on fraudulent deals or for fraudulent purposes. Second, in the case of egregious and willful activity by corporate shareholders or officers who put corporate gain over public good (Murray, 2015). 

Third is partnership. It is a legal relationship formed by the agreement between two or more individuals to carry on a business as co-owners. Unlike Corporation, partnership is not a separate entity from its owner. Since it is not a separate entity from its owners, then the owners must take the responsibility in case of business going bankrupt. Partnership must have at least one general partner who assumes unlimited liability for the business, for actions of the partnership. It may also include limited partners who are merely investors and who do not share in the day-to-day operations of the business and who do not share in liability. Partnership must have at least two partners. Partnerships are usually registered with the state in which they do business, but the requirement to register varies from state to state.  Partnerships use a partnership agreement to clarify the relationship between the partners, roles and responsibilities of the partners, and their respective shares in the profits or losses of the partnership (Murray, 2015)
Fourth is Trust. Trust is usually formed upon the death of an individual and is designed to provide continuity of the investments and business activities of the deceased individual (Perez, 2015). Fifth is called non-stock nonprofit corporation. Their purpose is not for profit but it is for service or for charity. Such kind of business is exempted from tax but it needs to report its activities and income and assets to ensure that it complies with the government laws with charitable institution or corporations. We use the term nonprofit because these organizations are not set up for the sole purpose of making a profit. Rather, they pursue public benefit purpose that is recognized by the constitution. What makes an organization a nonprofit is that: first its mission. Its mission is to undertake activities whose goal is not primarily for profit. Second, no person owns shares of the corporation or interests in its property. Third, the property and income of the nonprofit corporation are never distributed to any owners, but are recycled back into the nonprofit corporation's public benefit mission and activities. In terms of ownership, it is owned by the public, it belongs to no private person and no one person controls the corporation. All its assets are dedicated to service or charity. The cash, equipment, and other property of a nonprofit cannot be given to anyone or used for anyone's private benefit without fair market compensation to the nonprofit organization (Fritz, 2015).  In terms of control, it is controlled and governed by Board of Trustees and their function is to see to it that the organization serves the purpose and the founder does not own or control the nonprofit. Board of Trustees does not act as individual persons but act as a group. Nonprofit is only accountable to the public and it is therefore, it must file annual information return to the appropriate office of the government (Fritz, 2015).  
After understanding the nature of business, now we have idea how business are working. Some are taking full responsibility and others are avoiding responsibility which is allowed by law.     However, setting aside the discussion on the different kinds of business organization, from the definition, it gives us a clear view of what business organization is all about. Depending on the kind of business, each business has different set up and has different level of liability. Some have unlimited liabilities, while others have limited liabilities. In the case of unlimited liabilities, then such business cannot cover itself from legal charges and assume the damage. However, our concern in this particular topic is corporate moral responsibility. A corporation has a limited liability because it is a separate entity from its owners. The concern is: who is taking the moral responsibility? 

Corporate Moral Responsibility and Individual Responsibility

The starting point of discussion is: is a corporation not morally or morally responsible for its actions? This question is raised because of the fact that corporation has a limited liability. Such nature of corporation has brought controversies between theorists whether a corporation is morally responsible or only the individual person, not the corporation. Answering the above question would be simple if we follow the previous argument on the determining factor of moral responsibility, then we can give immediate answer to this question. As long as the act was done knowingly and willingly by the corporation, the organization is morally responsible. However, problem becomes complicated because it is not a matter of applying such principle but the theory of corporation makes it complicated. The idea of corporate veil makes things harder. Pursuing this idea, we encounter a problem and the problem is a corporation has no reason and free will because it is a legal entity created by law that can carry out a business for a certain objectives. It is not an individual person who acts knowingly and freely. Corporation is a separate entity from its owners and thus it has a limited liability, in the sense that it cannot take all the blame for its actions. Why? Those who use the individualism methodology would argue that "corporations don't commit offenses; people do (Bodenheimer, 1980). The strategy of Individualism, as revived by numerous commentators in recent years, is to abolish corporate criminal liability and to rely instead on individual criminal liability (Lederman, 1985). He continued that theoretical basis for imposing criminal liability on the corporation remains unclear. And such situation has encouraged the trend toward a slight restriction in the scope of corporate criminal liability.

How can we apply responsibility and blame to a corporation? Friedman (1967) as cited by Lederman (1985) argued that many debates have come out to discuss issues related to moral responsibility of the corporations. Indeed, the very substance of the corporate body is controversial and various views concerning it have emerged. There are those who treat the corporate body as a mere legal fiction devoid of the ability to function independently and requiring permanent representation by human beings.  Others treat corporations as real entities claiming that the law merely recognizes the existence of corporate bodies rather than creates the corporate entities. A third group of jurists rejects both these approaches and offers additional explanations. For the upholders of the theory of individual responsibility rooted in methodological individualism and its related metaphysics, argue that one cannot ascribe moral responsibility to a corporation but only to a “a flesh and blood” individuals who are moral person but Soarez (2003) argued that corporations have sufficient structural complexity to be agents whom it makes sense to call to account for their actions and the consequences of those actions. It may not be possible for corporations to be responsible in the way that the individual can be but they can be responsible appropriate to corporations. J. Braithwite and B. Fisse, (1998) in an article, “The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability” as cited by Soarez (2003) argue that methodological individualism amounts to a dualistic ontology. On the one side are individuals and on the other are corporations. Individuals are observable and therefore, real, while corporations are abstractions without the possibility of direct observations. If it is so, it is not possible to ascribe to moral responsibility to a corporation and ideas such as agency, autonomy and rationality do not apply to a corporation. Therefore we cannot expect formal organization or their representative to take the moral blame. It is along such line of argument; Soarez (2003) lamented that moral responsibility is a word without meaning. Amidst those conflicting discussions, however, debate along such idea never ends because of the desire to settle the score on who is holding the moral responsibility. The question of who is holding the responsibility remains alive because different interpretation of the nature of corporation. Trying to settle the interpretation, Lederman (19850 suggested that that distinctions must be made between human beings and corporate bodies. Those distinctions are not to clear one and punish one but to clear the responsibility in terms of the extent to which both are responsible morally. Some argue that even assuming that the individual desires of a group of people working in concert can form a "collective will" as a result of the interdependence and mutual influence within the group, and even assuming that this synthesis of desires is distinct from the separate wills forming it (Braithwite &b Fisse, 1998), the problem of personifying the corporate body is not thereby brought to a clear-cut solution. The corporate entity is an enterprise devoid of the physical ability characteristics of the human race. Man possesses consciousness and physical aptitude, as well as the power to exercise them. Corporate bodies, in contrast, are bereft of those capacities and depend totally on a human source in order to function.

To clear such issue, Soarez (2003) presented two arguments from two contestants: Nominalists and realists. For the Nominalists, corporations are collections of individuals or aggregations of human beings. While the Realists argue that a corporations has its own existence and a meaning as well as moral/legal personality of its own. He further emphasized that both of these views have implications for moral and legal responsibility. In the Nominalists view, corporations do not exist apart from its members; any blame worthiness or responsibility can only be obtained from the culpability of an individual employee. Therefore, in line with this Nominalists view, corporations are moral persons in the sense that they are entities and they are intentional actors. Corporations are entities with dominant role to play in our society. Corporations are more than mere collection of individuals which means that they are capable of moral decisions and therefore susceptible to moral blame. However, this would leave one with the problem of deciding whether the corporations should be responsible for the behaviour of its employees or only for some of them. Definitely if employees or employee acts on behalf of the corporation because they are or he/she is carrying out their duty or her/his duty authorized by corporation, then in this case the corporation has to take the blame. On the realists view, corporations represent something beyond individuals which means that following this point of view, it may be possible to find a new candidate for attributing responsibility. In the realists view, the corporation is not morally responsible. However, Lederman (1985) settles this issue by using the conspirator theory. He said that the theory of conspiracy holds any conspirator liable for crimes committed by fellow conspirators in the furtherance of the conspiracy, even if the conspirator was not capable of committing the offense himself. The analogy to the theory of corporate criminal liability suggests that each breach of law the corporate body has been accused of is in furtherance of an offense previously plotted between the corporation and the perpetrator. Hence, the corporation is criminally liable for the acts of the perpetrator in execution of the plan of the conspiracy.  

Based on those arguments presented in the discussion, we can settle our case on the question of   “who is taking the blame?”  Following the argument, the traditionalist and the Nominalists definitely would answer that the one who is taking the blame is an individual person or employees because they are the ones who have reasons and freedom. They have the knowledge of what is right and what is wrong and the knowledge of what is good and what is bad. Therefore using their freedom, individual employee or employees could refuse to carry out a job which is not moral, even though they or she/he is authorized to do so. Further they argue that individuals had to carry out the particular actions that brought about the corporate act. Contrary to the traditionalists and Nominalists’ view, French (1979) as cited by Velasquez (1998) claimed that when an organized group such as corporation acts together, their corporate acts may be described as the act of a group and consequently the corporate group and not the individuals who make up the group must be held responsible for the act. Take an example, the defective product of a beauty product cannot be attributed to the individual person but it is attributed to the corporation or the company where the product is made, so long the cause of defective product was not caused by individual employee but a consequence of following the order of the company. Velasquez pointed out that more often than not, employees of large corporation cannot be accused of “knowingly and freely” join their actions together to pursue corporate objectives. Often time they may not be aware of the intention and the ends/objective of the corporation’s act because they are not involved in the discussion during the planning process and they have no way of finding it out and are not capable of stopping it. In this case, the excusing factor is ignorance and inability.

However there are situations wherein employees know that the corporation’s plan is immoral, but, they just ignore about it and using a classical argument that they have no power and have no choice to do otherwise except to follow the order. In fact they still have the capability to question and to withdraw their cooperation if they want to but they choose to go along because of the fear and pressure that they might be fired. Given their reasons, those reasons could not be used as an excuse by the employees or employee from their moral responsibility. Velasquez (1998) claimed that following orders out of fear of his/her boss cannot absolve the employees/employee from moral responsibility. Unwillingly cooperate with the corporation to do a certain crime cannot excused him/her from moral accountability because such reason is not serious enough to cause his/her mind goes blank but she/he is still in full control of her knowledge about the wrongness of her/his action. Example, an employee was authorized by his/her employer to put a bump near the gate of their business competitors. The employee cannot claim that he/she is just following orders because the employee knows that it is wrong but still doing it. Doing a certain crime because of fear, threat, and uncertainties may lessen or mitigate the moral responsibility of the employees. The employees/ employee can only be exempted from moral responsibility if the employees/employee is found to be in complete ignorance about the wrongness of their act and if he/she was coerced by his/her boss to commit a certain crime, however, such reason can only be accepted if the coercion was very serious up to the point that her reason cannot function well.  Moral responsibility requires merely that one acts knowingly and freely and it is irrelevant to use the reason of “following orders only”. Following orders because of pressures may only mitigate the employee’s moral responsibility over the crime.  

Conclusion

 After presenting the arguments of pros and cons, we conclude that employees and corporations are morally responsible to the crime they commit. However moral responsibility depends on the circumstance in which how the crime is committed. The determining factors of moral responsibility is knowledge and freedom or freewill. Though a corporation is separate legal entity from the owner, however, a corporation is composed of rational human being who has knowledge and freedom. Employees who are working in the corporation are authorized by the corporation to carry out their job as prescribed by the organization or in other words, they are just doing their job. However, as individual employees, he/she has still the freedom to choose to follow or not to follow if the order is not moral. It is based on such argument, we conclude that both: employees and corporation are morally responsible to the crime committed by the corporation.    In this regard we have group and individual moral responsibility. Individual responsibility maintains that only individual human agents can be held morally responsible, and group responsibility maintain s that groups, such as corporation, can be held morally responsible as groups, independently of their members.  These opposing positions rest on a deeper conflict between methodological individualists, for whom all social phenomena, such as group activities, can be explained by reference only to facts about individual humans, and methodological holists who defend the ontological position that there are social groups capable of actions that cannot be reduced to the actions and interests of their individual members.

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