Penn State and Corporate Personhood

In response to my post last week on the NCAA's decision to sanction the Penn Sate football program, Gwydion complained that the term "death penalty" ought to be reserved for the real death penalty.  Similarly is the compliant I have heard that the punishment of the Penn State football program is unjust because it only punishes the current players and not the actual wrong-doers who are retired, dead, or in prison.  The connection between these concerns derives from the topic of yesterday's post on corporate personhood.  While the argument presented in the Wall Street Journal by the Welches is horribly flawed, the ultimate conclusion may not be.  There is some sense in which corporations and like organizations (including Penn State football or at least Pennsylvania State University) is like a person.  This does not mean that they should be given all of the rights and protections under the law of actual citizens, but it does mean that they have certain moral responsibilities and should be punished for violations of them.

Not all people are persons.  Minors, for example, are human but are not afforded all of the rights and privileges of adults.  They may not vote or drink alcohol. Yet, while they are not fully incorporated into our system governed by laws, we do hold them to be moral agents for the most part.  They act based on intent and we praise or condemn them for those actions.  We may not hold them fully legally responsible, but we do hold them to certain ethical standards (even if they are a bit lower than that for adults).  The reason for this is that they are capable of deciding how to act and then carrying out those actions.  Their deliberations are colored by their immaturity and lack of experience and so we cut them some slack, but by in large we still find them to be responsible for what they choose to do.

Organized groups are different from mobs.  There may be causes for what mobs do, but that is different from a structured organization with a clearly defined means of making decisions.  A corporation, for example, has explicit policies about what bodies or individuals make what decisions for the organization and how those bodies or individuals are selected.  Likewise, they have clear structures for determining how those decisions are put into place.  Organized groups decide how to act and then act accordingly. 

Those decisions are based upon the work of the minds within the organization, but as we sketched out yesterday, the decisions arrived at by a group are not necessarily those of any particular mind.  The example was that we may have a board deadlocked on a necessary decision between three options.  Half the board prefers option A and thinks that B would be a disaster.  The other half thinks A is a non-started and that B is the best way to go.  If some decisive choice is required, the board may unanimously select C even though no single member of the board prefers it.  Thus the decision of a group may not be the same as the decision of the members.  It, in a sense, has its own mind.  If C ends up doing wonderful things for the community, the board deserves to be lauded for its decision; if it causes harm, the board deserves condemnation and maybe even worse.  It made a choice with consequences and it is responsible for those consequences.

Similarly, the corporation or organization is capable of acting on decisions.  Some of those acts will be carried out by individuals and while the individual certainly assumes some moral responsibility for acting on the organization's behalf, the organization itself also bears some of the moral weight as well.  It is the organization who intended for the act to be carried out and part of it that did the work.

To see that the organization is more than the sum of the parts, look at organizations whose parts all change.  The 1932 New York Yankees and the 1977 New York Yankees are both the New York Yankees.  No member of the organization was the same between the two, but because there is a continuous causal history of which the two are a part, the New York Yankees as an organization is more than those who are in it at the time.  Indeed, we see that the organization is not just the people in it when we look at the way the people in the organization are shaped by its corporate culture.  Philosopher Peter French wrote in an article on the subject that in a survey of Fortune 500 CEOs, he asked how different their company would be if someone else headed it up.  the overwhelming majority said little or not at all.  Organizations have a culture that creates expectations and those in it act as they think they are supposed to.  You can have the same people in the same hierarchy, but put them in a different culture and they act differently. It is the organization, then, that is a part of the cause of the actions and decisions.

This is why we speak of the "death penalty" and choose to punish the organization in cases like that of Penn State.  The failures were certainly those of individuals and those individuals should be condemned and punished.  But they are also in part due to the culture of the organization which has a life of its own.  Penn State football lived on past Joe Paterno.  He may have been synonymous with the program in many people's minds, but it was an organization not a person or set of people.  As such, moral failings may belong to both the individuals in the organization and to the organization itself.  Sometimes those failings may be so egregious that they expose a corporate culture so flawed that it needs to be dissolved, to just go away.  In this sense, we are destroying a thinking, acting entity, something that did have, in some sense -- possibly metaphorical, possibly not -- a life of its own and thus we use the phrase "death penalty."

I think the phrase is appropriate because I do think that corporations and other organized groups are person-like enough to be treated as persons.  Speech about corporate responsibility is meaningful.  Corporations and organized groups possess the necessary attributes for being morally important entities.  But, like minors, I do not think they deserve the same rights as adult citizens.  they should not be allowed to contribute to campaigns and they should not have speech protections of the same sort.  But, when they contribute to horrible crimes, they should be sanctioned appropriately and that will mean that those who are associated with them but are innocent of the particular wrong-doings will suffer.  But just as they benefit from the well-doings of others in the organization, that is part of being a part of the corporation, that is part of the moral luck to which one submits by being a part of that institution.