Corporate Responsibility for Crimes - Thinking Outside the Box

Emeseh, Engobo, 'Corporate Responsibility for Crime: Thinking outside the Box' I University of Botswana Law Journal (2005) 28-49 RAE2008

Since the 19th century when corporations were first made the subject of criminal law, there has been a ongoing controversy regarding the theoretical basis of this. The crux of this debate is whether criminal liability can exist without moral blameworthiness, or put another way, whether corporations not being human or natural person can be held responsible for a crime which ostensibly connotes fault or moral wrongdoing. In spite of this however, there is increasing use of criminal sanctions to regulate corporate behavior. Public opinion is also increasing in favor of criminalizing corporate wrongs. This has been more so in the latter part of the 20th century, when the power and influence wielded by corporations and the harm they can cause has been highlighted in several high profile incidents involving corporations. It is therefore unlikely that corporate criminal liability will go away in the near future if at all. Against this background, this paper, after reviewing the current debate and developments in corporate criminal liability theory, argues that although there are apparent theoretical problems in the current methods of attribution of criminal liability to corporations, this is more to do it limiting such thinking within the confines of existing criminal law theory, Criminal law theories applicable to natural persons obviously have constraints when applied to a non natural person. Nevertheless, law, just as the society it servers, is dynamic and therefore criminal law theories have to adapt to the realities of the modern world. Corporate criminal liability is here to stay for the foreseeable future and therefore what is needed is perhaps a pragmatic approach which seeks to make its application more effective. In this regard, there are already attempts to develop alternative models for attributing liability to corporations. These are far from perfect theories at this stage. Nevertheless, they are pragmatic in their approach and a worthwhile focus of academic attention.

Peer reviewed