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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