Corporate Agency and Reactive Attitudes

In “Corporate Crocodile Tears? On the Reactive Attitudes of Corporate Agents” (2017), Gunnar Bjornsson and Kendy M. Hess challenge anyone who finds it reasonable to regard corporations as agents in a basic sense but refuses to assign feelings of guilt, sadness, or indig­nation to them.

The strategy of Bjornsson and Hess, as I understand it, is to establish, first, that if we accept functionalist arguments to the effect that corporations have basic agency, then we should also accept that they can be in states that are functionally equivalent to, for example, individual reactive attitudes like guilt feelings. Second, they assume that if the corporation’s and the individual’s states are functionally equivalent, then they are morally equivalent. The step from functional to moral equivalence could be problematized. Hess’ and Bjornsson’s dismissal of the phenomenal point of view in this context indicates that they have a narrow sense of“functional equivalence” in mind, where references to subjective experiences are excluded. (Functionalism in a broader sense might admit that a specific attitude’s functional role could include its relation to subjective experiences, or dispositions for subjective experiences.) On that kind of function­alism, we would have to say that e.g. a robot programmed to imitate a mammal’s physical pain perfectly in terms of inputs and behavioral outputs is in a state that is functionally equivalent to the mammal’s physical pain.

The standard argument for regarding corporations as independent agents is that corporations can make decisions, express beliefs and follow policies that do not reflect the views of their indi­vidual members. This is taken to prove that “corporate commitments are distinct from member commitments, and this remains true regardless of whether they conflict or cohere” (Bjornsson and Hess 2017: 276). I agree. It is obvious that such discrepancies can occur when the cor­poration is undemocratic, but it is also a fact that no collective decision procedure that fulfils reasonable rationality constraints can guarantee an outcome that reflects the beliefs and desires of its members. This is Philip Pettit’s main reason for thinking that groups have “minds of their own” with their own beliefs, desires, and intentions (Pettit 2003). It could also be the case in periods that no collective or individual decisions at all are made about the corporation’s overarching goals and policies — corporate policies and commitments have simply been passed on from previous generations of members, and new members carry on executing those policies without contestation, “because that is how things are done” in this company, as Pettit says. As Bjornsson and Hess note, members may continue acting on the corporation’s commitments and make various decisions based on them in response to external events, and they may even adjust the relative weight of those commitments when they come into conflict, without necessarily embracing these commitments as individuals.

I accept that this kind of distinction between member commitments and corporate commitments is sufficient for admitting that there is a basic sense in which a corporation can be regarded as an autonomous agent.

My first worry concerns the next step in the argument: from ascribing basic agency to corporations on account of the distinction between corporate commitments and member commitments, to equating corporate beliefs and desires with individual beliefs and desires in the standard sense. What we have established is rather agency in a very basic sense. As Pettit admits, If we are to recognize the integrated collectivity as an intentional subject, then we must admit of course that it is a subject of an unusual kind. It does not have its own faculties of perception or memory... it is incapable of forming degrees of belief and desire in the ordinary fashion of animal subjects; its beliefs are recorded as on-off judgments, its desires as on-off intentions.

(2003: 182)

What we may think of as a corporation’s beliefs, desires, and intentions are “its commitments about how the world is, what goals to pursue, and how to act” (Bjornsson and Hess 2017: 277). As far as I can see, there are essential functional differences between corporate commitments and the beliefs or desires of an individual. Take ACME’s commitment to be environmentally responsible. Such a commitment typically consists in a directive expressed in a policy docu­ment or a declaration that may be internal or public. The directive, in turn, is the end product of an individual or collective decision process. The corporate directive is the consequence of a decision taken at a specific point in time. The function of the directive is to promote or restrict future behavior of the corporation in this or that direction. The proper functional analogy to this kind of organizational commitment in the individual case would be the adoption of a pre­commitment device (like making a public New Year’s promise that I will be environmentally responsible in order to raise the cost for certain future choices, e.g. in terms of lost respect from those who heard my promise) rather than a continuous desire.

A full-fledged desire would be a continuous internal state of ACME, which explains why they took the specific decision to adopt this policy document, or would enable us to predict future commitments. But nothing in the description of what happens makes it necessary to pos­tulate a state of ACME with that functional role. What explains how the directive came about is a specific individual or collective decision procedure (whose outcome admittedly need not reflect the views of ACME’s members).

If I would like to be environmentally responsible and know that I fail to be so, I have a con­tinuously frustrated desire, i.e. I am in a state, presumably unpleasant, making me disposed to act and think in various ways. If ACME has declared its commitment to environmental responsi­bility and fails to live up to it, there may be external sanctions of various kinds, and individual members may feel frustrated if they identify with ACME or sympathise with its stated policies. However, there is no reason to think that ACME as such thereby has a continuous frustrated desire. It has a policy document that was decided upon at a specific point in time. If ACME declares regret over its failure, this new declaration is the result of another individual or col­lective decision procedure.

My other worries are more empirical and concern corporate guilt feeling behavior in real life. My evidence is anecdotal, but to begin with I find it rather unusual for corporations or their official representatives to display behavior indicative of such feelings on the part of the corporation as such. On the contrary, it seems to me that when the representatives of a business company or a public authority want to express concern for the victims of some harmful act that the corporation has committed or contributed to, they typically do this in a personal manner, marking that they and possibly their colleagues personally feel for the victims and their families etc. rather than that the impersonal corporation does so.

It is true, as Bjornsson and Hess state, that ACME as a corporation “might issue apologies and compensate victims because ACME’s position is that this is what one does when one is responsible for some harm” (2017: 18). This could be a policy and a standard procedure in the company. Apologies and compensation are weak indicators of guilt feelings though. I might apologise and compensate you after having broken your vase even if both of us know that it was an accident and completely unintended. Compensation may be fully justified even in cases where it is clear that there is no moral guilt to begin with. In the context of tort law, the notion of strict liability often applies precisely to cases where people have been harmed by commercial products. In such cases there may be a common assumption that the company causing harm is also responsible for compensating the victims, regardless of any wrongdoing.

Moreover, we should not underestimate the role of pure business strategy as the explanation of why apologies and compensations are offered. Think of cases where the risk of costs for future lawsuits, fines, apologies, and compensations have been calculated and weighed against expected profit before the harmful decision is made.⁸

Even if my empirical speculations about corporate behavior are true, they would not by themselves show that it would be impossible for a corporation to display all the subtle behavioral signs that are significant of guilt feelings. If that happened occasionally, only an oversimplified form of behaviorism or role functionalism, identifying guilt feelings with its external displays, would force us to conclude that the corporation in such a single case feels guilt. Unless this happens regularly and typically, we have no reason to believe that the company is in a con­tinuous state warranting predictions about future patterns of behavior in relation to guilt in new decision contexts and circumstances.

In line with what I said in the first section of this chapter, I think that guilt feelings like other reactive attitudes have an essentially social and involving character, reflecting our sensitivity to how we are regarded by others and our caring about how they believe that we regard them.

Bjornsson and Hess agree that the unpleasant nature of guilt feelings might be important for its role in practices of holding responsibility (even though they do not think that this is abso­lutely necessary for fully fledged moral agency, p. 288). They claim, though, that something like the motivational role of unpleasantness is an element in a corporation’s moral equivalent of guilt feelings, “since an organization instantiating the moral equivalent of guilt... will be thrown into disruptive internal conflict, conflict of a sort that it is motivated to avoid” (2017: 288). That rests on their assumption that the organization as such desires to avoid changing its commitments and values, and that taking on the moral equivalent of guilt feelings requires such changes. It is not clear to me why an organization as such necessarily should be motivated to avoid chan­ging its commitments (nor that companies displaying elements of guilt behavior typically make fundamental policy changes). That seems to presuppose that the organization is attached to its commitments in a stronger sense than the assignment of basic agency, consisting of on-off intentions, and on-offjudgments, can justify.

16.6