Amy Sepinwall on Blame Emotion and the Corporation

We can only blame those who experience guilt.

Guilt requires the person or entity to have feelings.

Amy Sepinwall
Wharton School
University of Pennsylvania

And corporations have no feelings.

Thus, they cannot experience guilt.

And therefore it makes no sense to blame them.

Corporations are not blameworthy.

That’s the conclusion of Amy Sepinwall of the Wharton School at the University of Pennsylvania.

She is the author of Blame Emotion and the Corporation, which was published in a book titled The Moral Responsibility of Firms (Oxford University Press, 2016).

“The immediate implication of the argument is that the corporation cannot, and so should not, be blamed,” Sepinwall writes. “But the account developed here is not in the least intended to function as an apology, and still less a blank check for corporate wrongdoing. I shall argue instead that the fact that the corporation is not blameworthy does not entail that we may not punish it when it goes wrong. In that sense, my arguments may appear to have a very modest aim.”

Therefore we should punish it when it goes wrong. Should we use the criminal law to punish it?

“If you think that the purpose of the criminal law is to aim moral outrage at offenders and induce an experience of guilt in the offender, then you shouldn’t use the criminal law to target corporations,” Sepinwall told Corporate Crime Reporter in an interview last week. “That narrower claim leaves open the possibility that the criminal law could be about other things. Given that the corporation is not a moral person, it could be a suitable target for a deterrent rationale. You wouldn’t even have to justify punishing corporations on a deterrence basis. All you would have to do is show that the punishment is likely to deter.” 

“For human adults we can’t punish people simply because of deterrence. They first have to be guilty. But if one has a different understanding of the purpose of the criminal law, then the path is open to continue to think that the corporation is a viable target of the criminal law.” 

Your main argument is that they can’t experience guilt and therefore it makes no sense to blame them. But you also say that these arguments “give us reason to prohibit the corporation from participating in the central institutions and practices of democratic society.”

What do you mean by that?

“As citizens, we elect people who will seek to pass laws that represent our vision of the way the world should be? How do you come to a vision of the way the world should be? One feature is that you have a capacity for empathy, which is tied to a capacity for emotion. You have to be able to imagine what it feels like to be in someone else’s situation. If corporations don’t have that capacity, why should they get to play a role in deciding who gets to be elected? Of course, they don’t get to vote. But Citizens United makes  the case that they can play a very powerful role, nonetheless. They can pay for speech for candidates for office with no limits.”

You quote Deborah Tollefson as saying – “eliminating our emotional responses to corporations would eliminate the possibility of relationships with them.”

And then you write – “Indeed it would. And, impervious to guilt as the corporation is, as well it should.”

How far would you take that? Corporations can’t lobby Congress? They can’t spend money on elections? They can’t engage in democratic society?

“I don’t know that I need to go that far. We don’t let foreign citizens vote in our elections. We might consult a foreign citizen or country because they have expertise.  We could consult corporations to help us solve pressing democratic problems. The role the corporation would play would be an advisory one and not an influential one.”

Any specific policy prescriptions on prohibiting corporations from participating in democratic institutions?

“Other countries have much stricter limits on how much money a person can spend to support political candidates for office. The underlying rationale is called an equal participation principle. The thought is that a campaign spending regime should allow each person roughly to have an equal opportunity to participate. On that basis, they impose limits on how much anyone can spend to support or oppose a candidate for office. I would be very sympathetic to those kinds of limits. There are also much stricter lobbying regulations. I would also be sympathetic to those types of regulations.”

You are going to be attending a conference at Georgetown Law School at the end of this month titled Imagining a World Without Corporate Criminal Law. The organizer says this – “leading scholars representing diverse viewpoints will imagine criminal law without corporate liability and trace the possible implications of such a development.” 

You will be one of those scholars attending. On the continuum of scholars who would get rid of corporate criminal law on one end, to scholars who would advocate for a tough on corporate crime criminal law, where would you fit?

“I wish I could offer you a straightforward answer,” Sepinwall says. “To my mind, the criminal law is supposed to apply to beings who can be held morally responsible. I try to argue that one of the requirements for being that kind of person is that one has to have the capacity for emotion. That seems especially relevant to me in the context of criminal law. The criminal law needs to get the offender to recognize in a deep, emotional sense, the fact of their wrongdoing. It aims at least in part to elicit an experience of guilt. It also means to provide victims and the rest of the moral community with an opportunity to unleash the indignation that crime produces.” 

“If you have a being that has broken the criminal law or acted in a way that the criminal law prohibits, and that being has no capacity to experience guilt and can’t acknowledge or absorb the anger that the community aims at it, it seems as if it is not fit for the criminal law.” 

“Corporations don’t possess the requisite capacity for emotion. And thus they shouldn’t be targeted by the criminal law. I don’t at all want to conclude that corporations should be able to act with impunity. There are other ways for the law to target them when they produce harm.”

“At the same time, it may make sense to target the corporation, not because it is the offender in the first instance, but because it is the project of the individuals who likely deserve our indignation and also rightly deserve to be sanctioned. Those individuals are the high level managers at the corporation.” 

“So it could be that even while you shouldn’t think of the corporation as the appropriate target of the criminal law in the first instance, as an indirect way of punishing those who deserve blame – upper management – we should take their corporation down in some way – impair their project.”

Could criminal law play a role in impairing the project of the corporation?

“It could. You could impose certain constraints on what a corporation could do – like denying the corporation the ability to participate in public contracts.”

[For the complete q/a format Interview with Amy Sepinwall, see 35 Corporate Crime Reporter 40(12), Monday October 18, 2021, print edition only.] 

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