Corporate Affectivity and Membership in the Moral Community

Lincoln Chair in Ethics
Arizona State University
Membership in the Moral Community Preliminaries
• Members of the moral community = Proper
targets of the critical perspective of morality – an
accountability theory of responsibility.
• To be a member of the moral community is to be
the referent of any proper name or description
that can be a non-eliminatable subject of a
participant reactive attitude.
• Membership in the moral community minimally
requires the capacity to appreciate moral reasons
as relevant to one’s act choices, the ability to react
to those reasons appropriately, and thereby
acknowledge ownership of one’s actions, and the
capacity to participate in moral dialogue and
• It has been argued that the reactive attitudes are
misapplied when corporations and collectives are
their subjects; only humans are appropriate
• I take our accountability practices involving the
expression of reactive attitudes at face value, e.g.,
my expression of indignation at BP for the
Deepwater Horizon disaster is directed at BP, the
• In effect: We regularly morally assess corporate
behavior and express moral outrage about what
corporations like BP do.
• That suggests that we presume they have the ability
to consider our criticism and respond in a morally
appropriate fashion, qua corporation.
• When a corporation enters into a dialogue about
the moral appropriateness of what it has done –
through its spokesperson, it is exposing the fact
that it has the capacity for moral address.
• Our reactive attitudes towards corporations
should not be understood in the way that Kendall
Walton understands our emotional reactions to
fiction: as “make-believe.”
• Which suggests that corporations are not, as
Dworkin claims, fictions.
• Clarification: Despite the title of a well-known paper I
published in 1979 in which I propounded the theory
that being a moral person was to exhibit a certain set
of functional capacities, primarily intentionality, and
that some corporations satisfied that criteria, I am
talking about moral agents, not persons, as the
members of the moral community.
• To respond to criticism, admittedly invited by my word
choice: “person”, I substituted “actor” or “agent” in
the 1990s. It didn’t help much!
• My position: the crucial functions for moral
community membership in the prototypical case of
humans are not uniquely possessed by humans.
1. Moral Community Membership Conditions
• A sketch: Members must exhibit certain functional
capacities: (a) the ability to act intentionally, (b) the
ability to make rational decisions, and (c) the ability
to respond to events and criticisms by altering
intentions and resultant behaviors.
• In effect, members must be self-referential
mechanisms with the following capacities:
(1) Moderate reasons responsiveness; and
(2)Affectivity, understood as the functional capacity
to care about the moral quality of its actions.
• If there are persuasive reasons why either (1)
or (2) are never justifiably applicable to a
subject that arouses our reactive attitudes,
exclude it from the moral community. It is a
moral alien.
• With respect to such aliens we can only take
what is called “an objective attitude.”
• We don’t hold them morally accountable for
what they do; we try to manage, regulate, or
eliminate them. (Treat them rather like
Aristotle’s conception of barbarians.)
Moderate Reasons Responsiveness
• (Helping myself to work by Fischer and Ravizza:
Responsibility and Control.)
• Entities that exhibit moderate reasons
responsiveness act from internal mechanisms
that can:
(1) recognize reasons as sufficient to act in a
certain way: reasons receptivity;
(2) translate those reasons into choices and act
on those choices: reasons reactivity.
• Receptivity = regularly receptive to reasons,
if not in every case – The subject exhibits a
pattern of reasons recognition.
• Reactivity = the subject is weakly reactive to
those reasons, i.e., the subject displays
some reasons reactivity revealing that the
subject has the executive power to do
something because of its recognition of a
reason to do it.
• Definition: Something is moderately reasons
responsive in a situation if it acts from an
intentional internal mechanism that: (1)
recognizes that there is a sufficient reason for
it not to do what it is about to do, and (2)
conceivably it would react to that reason in
the circumstances, even if that is a rather
remote possibility.
• This excludes from moral appraisability most
random groups and many collectives,
especially those I’ve called fictive groups.
• “Affectivity” is the capacity to care, in the
Frankfurtian sense, about the moral quality of
one’s actions; typically emerging in humans with
the loss of moral innocence.
• The subject views itself as an apt target of the
reactive attitudes of others because of its actions
(revealing its self-referentiality and social
• Caring about the moral quality of one’s actions is
usually expressed as shame, guilt, pride, sorrow,
regret, remorse, etc.
2. Corporations
• My corporate agency theory ascribes moderate
reasons responsiveness to some corporations.
• Those corporations have commitments, plans,
intentions, and desires (first and second order)
that do not necessarily align with and are not
reducible to those of the humans they employ.
• There are then two types of mechanisms that
can be moderate reasons responsive: Neuropsychological Mechanisms in humans and
Organizational Mechanisms in corporations.
Corporate Affectivity
• But can organizational mechanisms care about
the moral quality of their actions?
• A number of writers (e.g. Deborah Tollefsen,
Richard De George, and Mitchell Haney) argue
that though they agree with my work on
corporate intentionality, I must exclude
corporations from the moral community
because my work on moral maturity (the loss
of innocence papers) essentially involves
phenomenological affectivity and corporations
cannot convincingly express that.
• A case of being hoisted with my own petard!
• Corporations do not exhibit the ability qua
corporation, they argue, to recognize their
capacity, for example, to do evil or morally
wrongful things and that should be understood
as showing that corporations per se lack the
functional capacity to care about the moral
quality of their actions, to have the appropriate
self-reflective reactive attitudes.
• If their argument is that corporations are not
biological/neuro-psychological entities, then, of
course, it is indisputable, but uninteresting.
• They agree that corporations can plan, have
intentions, exhibit recursivity; so they must have
some degree of self-referentiality. They must be
self-reflective to some degree as well.
• The argument that corporations cannot express
affectivity cannot rest on their not being capable
of self-referentiality and self-reflection.
• There must be more to affectivity in the minds of
my detractors: The phenomenological “what is it
likeness.” {The “they are not human”-retort!}
• Corporations cannot be phenomenologically
affective. Does that mean corporations must
escape moral accountability? Reside outside the
moral community (Aristotle’s barbarians?)
• Problem: They are among the most powerful
entities in the world. If ethical admonition and
animadversion are impotent in controlling their
behavior, all we are left with is legal regulation
strategies, and not even soft law.
• Tollefsen offers me three strategies to repel the
“absence of corporate affectivity”- attack:
• (1.) Differentiate human moral agency from
corporate moral agency, each having its own
criteria for being held accountable. Different
mechanisms - different membership
requirements. The corporate criteria excluding
affectivity. (Virginia Held once proposed this
• Clearly, neuro-psychological and organizational
mechanisms will evidence differences. But are they
functionally different when it comes to meeting
moral community membership requirements?
• I cannot use Tollefsen’s first strategy. Doing so
jettisons my own account of mature moral
responsibility: A constitutive element of moral
agency is the ability to respond to moral
criticism with the self-reflective moral reactive
attitudes (the ability to care about the quality
of one’s actions) and alter one’s behavior
• David Silver’s alternative solution: Different kinds
of moral responsibility: corporate and human.
• Silver might have in mind that corporations can be
only attributively responsible, while humans may
also be accountably responsible.
• I take it that means that attributing
responsibility to a corporation for something is
to identify some of its internal
commitments/structures/policies that reveal
the sort of entity it is (perhaps one with
structural management deficiencies), but not
to hold it accountable for what occurred. – [Air
New Zealand and the crash on Mt. Erebus.]
• Reject: I hold an accountability conception for
all full-fledged members of the moral
• (2.) (From Tollefsen) Give up the affectivity
component for moral community membership.
Maintain that intentionality is adequate.
• My original paper may be read as holding this
position – a recent writer claims that both Rawls
and I are abstractionists when it comes to moral
agency or moral personhood.
• But Tollefsen’s second strategy is unacceptable:
My account of moral maturity commits me to
some sort of affectivity condition. (That petard
• (3.) Deny that corporations necessarily lack
• One way to do that is to adopt a cognitive theory
of affectivity that does not involve the
phenomenological “what it is likeness.” {To care
about the moral quality of its action, a subject
must exhibit a reactive attitude directed at a
proposition that describes its action.}
• I do not provide a propositional attitudes account
of human moral maturity. {Perhaps I should or
perhaps my account could be read as a cognitive
theory of emotion, but Haney points out it is not.}
• Tollefsen offers me a vicarious emotion theory in
which corporate employees are “conduits for
corporate emotions.”
• Warning - Beware of helpful philosophers!
• Example: A corporate employee speaking qua
corporate employee tells me that she is sorry that I
was double billed for a purchase on my credit card.
• Tollefsen’s account: The employee’s voice on the
phone is the vicarious moral-emotion expresser
for the corporation. She is conveying corporate
• We can have vicarious reactive attitudes for others
even if those others do not (cannot?) have the
same attitudes. But for corporations?
• For Tollefsen, corporations do not feel
emotions; human emotions are corporatized; a
notion I rather like, but not her account of it.
• But suppose the woman on the phone does not feel
the least bit sorry. Maybe no one in the corporation
feels sorry for what occurred, none of Gilbert’s
“membership sorrow.” How do we understand
vicarious sorrow, when no one is sorry? Is vicarious
sorrow unfelt, unexperienced, sorrow?
• To be vicarious, on my understanding, sorrow would
have to be undergone by one person substituting
for another, sympathetic participation.
• It is substitutionary. But it is hard to believe that the
woman on the phone is sympathetically
participating in the corporation’s experience of
dismay at what it did to me by substituting her
sorrow for what should have been its sorrow.
• Where’s the
• My account: Handling corporate affectivity will
require reiteration of my general theory of
corporate intentionality.
• My Davidsonian-like account of corporate
intentionality: X is an intentional action of
corporation C, if at some level of true description
an action (A) of a human [sometimes a machine
or a human in conjunction with a machine] in an
established role in C is redescribable, as licensed
by the organizational, policy, and procedural
rules of the CID Structure of C (its internal
organizational mechanism), as intentionally
done by C or intended by C.
• CID Structures subordinate and synthesize the
actions of various human persons (and/or the
running of machines) into corporate
intentional actions.
• Every CID Structure has two elements: (1) an
organizational flow chart that delineates stations
and levels and (2) procedural and policy
recognition rules.
• The organizational chart provides the
grammar of corporate decision-making. The
internal recognition rules provide its logic.
• The corporation appears as an intentional agent
at the level of redescription that CID Structures
(organizational mechanisms) make possible.
• All moral agents appear on the moral stage by the
wave of the wand of redescription.
• CID Structures license the descriptive
transformation of events, that under another
descriptive aspect are the acts or bodily
movements of humans or the running of
machines, into corporate acts. They incorporate
decisions, actions, and movements.
• CID Structures also may, in fact generally do,
contain conversion rules for the
redescriptions of certain types of utterances
by appropriate employees into descriptions of
expressions of corporate self-reflective
reactive attitudes.
• When a corporate employee says, “We are
sorry that we double billed your credit card
account,” the employee does not regret the
corporate act, is not ashamed about what
happened. He or she is reading from a script.
• You, however, are receiving an apology from
the corporation because a true description of
her reading from that script is “The
corporation is expressing regret for what it
• It is as sincere as most apologies go.
• It also makes no difference were it conveyed in
a digitally engineered robotic voice. Most
nowadays are!
• An appropriate Barclays representative
speaking to a TV camera: “We regret that we
did not set honest Libor rates” - may be truly
redescribed as “Barclays is expressing shame
or guilt (or some other self-reflective reactive
attitude) for its falsification of its London
Interbank Offered Rate reports.”
• I’m not sure what Barclays’ "We're clean, but
we're dirty-clean, rather than clean-clean”
• Expressions in the communal sphere of the selfreferential reactive attitudes are, generally,
performative, ritualistic, conventional.
• They may be insincere if not “backed” by a certain
feeling, like an apology without the feeling of
remorse, but they are not void (see J.L. Austin).
• A corporate employee expressing corporate regret
is not vicariously feeling regret for the
corporation. She is performing her corporate duty
of communicating the corporation’s regret, regret
that is only corporate if it arose from a corporate
assessment of the moral quality of its actions in
accord with its CID Structure.
• That CID Structure licenses the description of
what the employee says as a corporate
• Corporate regret or sorrow or shame is
referentially opaque.
• It is true that Barclays regrets, but not
necessarily true that the Barclays’ spokesperson
regrets, though Barclays’ expression of regret
and the Barclay spokesperson expressing
Barclays’ regrets are co-referential.
• If the corporation continues the offending
practice, we would have good grounds to regard
its expressed regret as bogus, because its
subsequent behavior would be telling us
something about its organizational mechanism
(a form of responsibility as attributability
creeping in). An ineffectual compliance system?
• If it takes corrective measures to assure
nonrepetition, there is no reasonable ground to
discredit its expression of regret, shame, guilt,
etc. even if it were delivered somewhat
inartfully by a robotic voice.
• Objection: In the human case we require
internal goings-on, not just communications,
vocal expressions, but genuine emotional
states, feelings.
• Minus the feelings, the expression is typically
thought to be hollow.
• That is asking too much of humans.
• Generally, we take expressions of self-reflective
reactive attitudes at face value, and only when
they are at odds with subsequent behavior do
we question their sincerity.
• Corporations occasionally express shame.
They may also claim to feel guilty. (Barclays
admitted: “We are guilty of being part of the
pack.”) Corporations frequently express pride
in their products, their employees, etc. This
sounds like the sort of affectivity we are after.
• We might decide that corporate shame, guilt,
and pride is different from human shame, etc.
But that may be only because we expect
humans to well up with those inner
emotional states, when they express selfreflective reactive attitudes.
• If having a certain inner neuro-psychological
state (emotion) is the criterion for the
correctness of the expression of a selfreferential reactive attitude, then corporations
must fail to meet the affectivity criteria.
• However, there is a famous Wittgensteinian
argument that in the case of humans throws that
criterion in doubt.
• The important question is “How do
corporations become self-referential in a way
that makes their expressions of self-reflective
reactive attitudes believable?”
• Carlos Gomez-Jara offered me an answer.
• “Thanks to recent developments in the field of
communication science, systems theory
explains how consciousness and
communication show nearly the same degree
of self-referentiality, recursivity, and
reflection.” (Gomez-Jara)
• Gomez stresses a basic functional similarity
between the neuro-psychological mechanism
that is the human seat of self-referentiality,
reasons responsiveness, and affectivity, and the
organizational mechanism that must be the
corporate seat of the same capacities.
• A neuro-psychological or an organizational system
can only differentiate itself from its environment
and other systems if it refers to itself and its
• A neuro-psychological system generates a
description of itself through consciousness (selfobservation).
• Communications do the same sort of thing for
organizational mechanisms. Communications in a
corporation are recursively produced and
reproduced and a system/environment
(corporation/environment) differentiation is
developed and maintained. [Gomez calls this
“autopoietic reproduction.”]
• The dynamics of recursivity in corporate
communications provides the foundation for
self-referential affectivity and something
typically called “corporate culture.”
• Corporations can insure that they have the
capacity to care about the moral quality of their
actions, express appropriate reactive attitudes,
and react accordingly by so engineering their
organizational mechanisms that are primarily
recursive communication processes. On some
accounts, such as Gomez’s, that happens as a
natural by-product of corporate communication.
• I am still a functional engineer, but I am willing
to entertain the possibility that through a
repetitive process of corporate communicational
recursivity the corporate moral agent emerges
capable of moderate reasons responsiveness
and the capacity to care about the moral quality
of its actions.
• Bottom line: With appropriately engineered CID
Structures, corporations can become adequately
self-referential and self-reflective and so fully
normatively competent, and mature members
of the moral community.
• Admittedly, when we hear the corporatized
voice on the phone offering regret for having
double billed a credit card account, it’s natural
to conclude that the regret is insincere, not
because we are worrying about how a
corporation has feelings, but because it is hard
to believe that any plan to curtail the practice
within the corporation is in the offing.
• That is cynical on our part, but we tend to take
an expression of regret by anyone who has
benefited from a wrongdoing, be it a human or
a corporation, with a grain of salt.
• So – Many corporations are not illegitimate aliens in
the moral community. They are normatively
competent, can express affectivity, own their actions,
and should be treated as such and not as fictions or
like innocent children or as Aristotelian barbarians.
• Some corporations, however, are merely shells that
have no self-referential or reasons-responsive
capacities. Others are closely held, alter-egos of their
• Neither of those achieve moral agency qua
corporation. They may be comparable to young
children – immature – and some are created (or
destined) to remain so and can only be regulated.
Addendum: Citizens United: Some Good,
Maybe; Some Bad, Indeed
• Because of my work on corporate moral agency
and frequent citations of it in the legal
literature, I have been often asked to comment
on Citizens United.
• Citizens United confers on American
corporations protection against political speech
challenges under the First Amendment of the US
• Maybe Good:
• Gomez’s maintains: because Citizens United, by
awarding a fundamental right at the core of
modern democracy to corporations, makes
corporations citizens of some sort, albeit not
voting citizens, it may be interpreted as also
burdening them with legal obligations in
criminal law and that provides a rationale for
punishing them, qua corporations, for the
unlawful exercise of the rights they possess.
• The Bad: Justice Scalia, wrote of corporate
speech: “It is the speech of many individual
Americans who have associated in a common
cause, giving the leadership ... the right to speak
on their behalf.”
• Setting aside the fact that many of those
affiliated in one way or another with an
American corporation may not be Americans,
the mechanism of corporate decision-making
and action reveals that Justice Scalia’s position,
corporations speak on behalf of those
associated with them, is just false.
• A corporation’s expressions of its opinions, beliefs,
desires, plans, intentions, etc. are not necessarily those
of the people expressing them.
• Corporate speech, like corporate action, is speech of
the corporation. It is one of the ways by which
corporations express and pursue their corporate
interests and express the beliefs, plans, desires, goals,
etc. that motivate their corporate actions.
• There is no necessary connection between what
corporate speech expresses and the beliefs, desires,
interests, plans, and goals of those employed by the
speaking corporation, hold its stock, or are otherwise
affiliated with it.
• Hence, protecting corporate speech is not
indirectly protecting the speech of corporate
employees, stockholders, or other corporate
affiliates, and their speech as individuals is already
• The question that the Justices should have been
asking is whether corporate speech is entitled to
First Amendment protection in its own right.
• To answer that in the affirmative, I suppose, would
have been to grant citizenship to corporations, to
make them full-fledged political persons. Perhaps,
for even the Supreme Court, that would have been
a bridge too far.
Aristotle, Nicomachean Ethics.
Austin, J.L. 1965. How To Do Things With Words. Oxford: Oxford University
De George, R. 1986. “Corporations and Morality.” In Shame, Responsibility, and
the Corporation, edited by Hugh Curtler. New York: Haven Publications.
Fischer, J. & Ravizza, M. 1998. Responsibility and Control. Cambridge:
Cambridge University Press.
Frankfurt, H. 1988. The Importance of What We Care About. Cambridge:
Cambridge University Press.
French, P. 1979. “The Corporation as a Moral Person.” American Philosophical
Quarterly 16: 207-15.
French, P. 1984. Collective and Corporate Responsibility. New York: Columbia
University Press.
French, P. 1992. “Losing Innocence for the Sake of Responsibility.” In
Responsibility Matters. 29-43.
French, P. 1992. Responsibility Matters. Lawrence, KS: University of Kansas Press.
French, P. 1995. Corporate Ethics. Fort Worth, TX: Harcourt Brace.
French, P. 1996. “Intergrity, Intentions, and Corporations.” American Business
Law Journal 34.
French, P. 2003. “Inference Gaps in Moral Assessment and the Moral Agency of
Health Care Organizations.” In Institutional Integrity in Health Care, edited by
Ana Smith. Kluwer.
French, P. 2011. War and Moral Dissonance. Cambridge: Cambridge University
Gilbert, M. 2000. Sociality and Responsibility. Lanham, MD: Rowman &
Gomez-Jara Diez, C. 2008. “Corporations as Victims of Mismanagement: Beyond
the Shareholders vs. Managers Debate,” Pace University Law Review.
Gomez-Jara Diez, C. 2010. “Corporate Culpability as a Limit to the
Overcriminalization of Corporate Criminal Liability,” New Criminal Law Review.
Gomez-Jara Diez, C. 2011. “Corporate Criminal Liability in the Twenty-First
Century: Are All Corporations Equally Capable of Wrongdoing?” Stetson Law
Haney, M. 2004. “Corporate Loss of Innocence for the Sake of Accountability.”
The Journal of Social Philosophy 35: 391-412.
Held, V. 1986. “Corporations, Persons, and Responsibility.” In Shame,
Responsibility, and the Corporation, edited by Hugh Curtler. 161-81.
Mackie, J.L. 1985. Persons and Values, Volume II, Oxford: Oxford University Press.
Pettit, P. 2007. “Responsibility Incorporated,” Ethics (January).
Silver, D. 2002. “Collective Responsibility and the Ownership of Actions,” Public
Affairs Quarterly, 16, 3, 287-304.
Silver, D. 2005. “A Strawsonian Defense of Corporate Moral Responsibility,”
American Philosophical Quarterly, Vol. 42, No. 4, 279-293.
Strawson, P.F. 1974. “Freedom and Resentment.” In Freedom and Resentment
and Other Essays. 1-25. London: Methuen & Co., Ltd.
Tollefsen, D. 2003. “Participant Reactive Attitudes and Collective Responsibility.”
Philosophical Explorations 6: 218-34.
Tollefsen, D. 2006. “The Rationality of Collective Guilt.” Midwest Studies in
Philosophy 30: 222-39.
Tollefsen, D. 2008. “Affectivity, Moral Agency, and Corporate-Human Relations,”
American Philosophical Association, Newsletter on Philosophy and Law, edited
by Steven Scalet and Christopher Griffin, 7, 2 (Spring 2008), 9–14.
Walton, K. 1978. “Fearing Fictions.” The Journal of Philosophy 75: 5-27.

similar documents