Written by Sharon Hartles April 2017
The question posed will be addressed through the deconstruction of four key questions which will unpack and reveal the interceding relations between states, corporations and the concepts of crime and justice. The lens' of power, harm, the local and the global will demonstrate how the aforementioned relations simultaneously negotiate political, economic, social and cultural discourse and are time and place specific. This is relevant because it will make clear how and why the concepts of crime and justice are argued to be ambivalent, abstract and highly contested. With this in mind this essay will critique a range of material including: academic and government research, policy directives and media resources for the purpose of providing a substantiated, coherent, pragmatic academic argument. This is important because it will evidence whether states are indeed powerless or merely averse to criminalising the harms perpetrated by corporations.
What factors influence state power?
Notions of free market principles such as: globalisation, capitalism and neo-liberalism, together with state and corporate power relations are argued to be factors which influence state power. For this reason these factors will be discussed for the purpose of ascertaining if these influence the power a state possesses to criminalise harms perpetrated by corporations. To analyse this claim a range of evidence will be drawn upon including: political and economic approach, The Organisation for Economic Cooperation, Development (OECD, 2017), Sutherland's concepts of white collar crime and networks of powerful elites (1945) and Kramer et al, (2002) concept of state-corporate crime.
Power relations between states and corporations must be studied in situ, defined as the practices which make up societies. Power relations within economic, political, cultural and social discourse, historic and geographic contingency, together with prevailing modes of thought and dominant value systems or a political economic approach. In order to explore a political economic approach a broad overview from The Organisation for Economic Cooperation and Development (OECD, 2017) will be evaluated because it will provide in situ contextualisation to why globalisation, capitalism, and neo-liberalism are factors which influence state power. The OECD (2017) claim since the late 1940s a European approach was adopted in the form of implementation of agreed policies such as free market trade principles between European countries stimulating economic progress and world trade for the purpose of reconstructing and maintaining peace. This is notably because it evidences how free market trade principles: globalisation, capitalism, and neo-liberalism underpin social stability. Globalisation is defined as an ongoing process integrating shifts of economic, political, cultural and social phenomena interceding in national, international (interactions between different countries), transnational (cutting across more than two shared boundaries of two nation-states) and supranational (global, inclusive of international/transnational) terrains for the purpose of informing one global system (ThoughtCo, 2017). Capitalism is defined as an economic and political system in which a country's trade and industry are controlled by private owners for profit, such as corporations rather than by the state (World Socialism, 2017). Neo-liberalism is defined as an economic and political doctrine that prioritises free market forces, privatisation, and deregulation and emphasises minimal state intervention. These definitions are important because they provide additional in situ shared understandings in the form of common knowledge, albeit contested, of globalisation, capitalism and new-liberalism within the academic field and substantiates the validity of these abstract concepts. What a political and economic approach makes visible is the significant intertwining relationship between the concepts of globalisation, capitalism, new-liberalism and stability illustrating why these are deemed to be factors which influence state power. With this in mind the proceeding section will examine the power relations between state and corporate representatives.
It is claimed corporate representatives actively and directly sway the enactment of legislation, regulatory policy, standards set, obscuring and moving certain issues off political agendas, overtly and covertly within state governments on local and global levels (Luke, 1994 and Barker et al., 1999). Sutherland's concepts of white collar crime and networks of elites (1945) expand on Barker et al., and Luke's assertions demonstrating how power relations between states and corporations influence state power to criminalise the harms committed by corporations. Sutherland maintains powerful corporations and states routinely commit crimes aided by the preserve of the powerful. He noted offences were processed as regulatory violations rather than crimes. Sutherland endorsed networks of powerful elites implement and administer black letter law defined as the basic standard elements or principles of law (US Legal, 2016) around their shared ideology such as globalisation, capitalism and neo-liberalism. This helps to address the question because it demonstrates within a political and economic approach, power relations, globalisation, capitalism and neo-liberalism are factors which influence state power. Box (1983) concur declaring criminal laws, within Western nation states reflect the ideological interests of particular powerful groups who have the power to constrain behaviours, actions and events emanating from unequal social relations and structures of dominance and subordination which may be exercised coercively or through consensus. This point is supported by Kramer et al, (2002) concept of state-corporate crime defined as corporations and states interceding to produce social harm, demonstrating corporate power to shape state law in the context of globalisation. This is relevant because it sheds light on how states and corporations are able to exert political power defined as the ability to keep some criminal acts out of public view by means of denial and economic power, defined as the ability to conceal criminal acts within the complexities of business law and self-regulations procedures for their joint mutual benefit. The concept of state-corporate crime and the definitions of political and economic power are relevant because they help to illustrate why power relations between states and corporate representatives within a political and economic approach are factors which influence state power. It can be suggested that state power to criminalise harms perpetrated by corporations is limited because of their interrelated nature with corporations such as the notions of shared ideology and mutual benefit of free markets principles these being globalisation, capitalism and neo-liberalism which are deemed to underpin and maintain social stability and world peace.
To summarise a political and economic approach evidenced how and why free market principles these being: globalisation, capitalism and neo-liberalism, together with power relations are simultaneously interceding factors which influence state power. The illumination of power relations within a political and economic approach provided reasoning to why state power to criminalise corporations is limited because they are protecting their own interests. It illustrated dominant western structures of crime and justice belong to the preserve of the powerful such as state and corporate representatives revealing why these are abstract, unjust and highly contested.
Is corporate harm beyond the remit of state power?
In contemporary societies the level of influence a state retains to criminalise harms committed by corporations is claimed to be limited, however this point is highly contested. For this reason competing viewpoints will be explored because it will provide a balanced argument and will reveal if corporate harm is beyond the remit of state power. The claim will be supported by The Single European Act (SEA) (1987) unified market approach, (Parliament.UK, 2013), Snider's (2000) notion of corporate counter revolution and McBarnett's (2006) concepts of whiter than white collar crime and creative compliance. In contrast, it will be demonstrated state power through the concepts of crime and justice systems can hold corporations and their representatives accountable and responsible. This will be supported by Families against corporate killings (FACK) campaign (2006) and The Corporate Manslaughter and Corporate Homicide Act 2007 (Legislation.gov.uk, 2017).
It is asserted corporate pursuit of profit is beneficial to global free markets and economic growth of the developed world. For this reason it is clear to see why corporations hold enormous economic, political and social power. Hertz concurs claiming free markets make states weak and limits states ability to criminalise corporate harms (2001). The Single European Act (SEA) (1987) provides rationale to Hertz' assertion. The SEA was the first major revision of the 1957 Treaty of Rome and its aim was to create a single internal market (Parliament.UK, 2013). The vision for a single market came into force through three stages: stage one, the common market, stage two, the single market and stage three, the unified market. Snider's (2007) notion of corporate counter revolution evidences changes implemented by states as a result of forging a unified single market. He insists virtually every OECD country through the 1980's and 1990's adopted a neo-liberal approach legitimising every acquisitive, profit-generating venture within the corporate sector and deregulation of policy which impedes it. Snider affirms legal regulation has declined resulting in a weakening of the social safety net. For these reasons it can be claimed state power to criminalise harms committed by corporations is restricted because it may have unintended consequences on the economy and/or social stability.
In contrast unjust, problematic and contested notions of crime and justice are challenged through the mobilisation of people to work for social change. Social justice defined as ideas about what makes society fair encompassing beliefs about the rights, freedoms, duties, and opportunities that individuals are entitled to leads individuals and groups to mobilise and join protests, pressure groups, riots, and revolutions. A broad overview of Families against corporate killings (FACK) reveals how the mobilisation for social justice shifts certain corporate harms into the realm of state power illustrating harms committed by corporations can be recognised as corporate crimes resulting in corporations being held accountable within crime and justice domains. The FACK campaign launched in July 2006 fought to have corporate harms committed within the workplace recognised by criminal law and accountable within crime and justice systems. FACK campaigners lobbied MP’s, and gained a voice at policymaking levels. As a result The Corporate Manslaughter and Corporate Homicide Act 2007, brought into force in April 2008, was created as a new offence (Legislation.gov.uk, 2017). What this makes clear is how power of social movements, campaign organisations, citizen participation, citizen action groups and citizens as consumers can influence state and corporate practices through boycotting, protesting, and politically lobbying certain injustices committed by corporations can be made visible.
To counter argue the effectiveness of social movement and citizen participation, McBarnett's (2006) concept of whiter than white collar crime evidences corporations render their harms 'perfectly legal or at least not expressly illegal'. McBarnett's concept of creative compliance reveals how corporations use professional advisers with knowledge of the law such as barristers to take advantage of legal loopholes to resolve legal problems such as cases of corporate manslaughter revealing how they use the 'letter of the law to defeat it's spirit'. This is evidenced by the case brought forward against Geotechnical (Holdings) Ltd Company who received an unlimited fine in 2011 after becoming the first to be convicted by Winchester Crown Court under new corporate manslaughter legislation following the death of a young geologist who died when a pit collapsed on him (The Telegraph, 2011). This is notably because it supports the concerns raised by FACK campaign members that a financial loss penalty would be the favoured form of justice instead of imprisonment for corporations/corporate representatives convicted of corporate manslaughter. The law firm Pinsent Masons, expand verifying in 2012, sixty three new corporate manslaughter cases were opened and three cases had resulted in convictions (Gosden, 2013). What this demonstrates is corporations use black letter law to work to their advantage, dodging the laws enacted by the state evidencing why it can be claimed states have limited power to criminalise the harms perpetrated by corporations.
To conclude in pursuit of a unified market, states recognise corporate harms to be an acceptable consequence of maintaining economic social stability. In contrast the concept of social justice illuminated how corporations can be held accountable through social movements and citizen participation which in turn compels states to enact laws which re-categorise certain corporate harms. However, corporations' clever use of the law reveals why it can be claimed corporate harms sit outside the remit of crime and justice systems.
Is corporate crime better considered through a social harm approach?
The effectiveness, fairness and reliability of contemporary, western dominant crime and justice systems are highly disputed because it is asserted they belong to the preserve of the powerful. For this reason, perspectives such as a social harm approach offer an alternative lens in which to consider corporate harm and challenges previously held taken for granted understandings of crime and justice. To ascertain if corporate crimes/harms are better viewed through a social harm approach the usefulness of a social harm focus will be compared and contrasted. This will be supported by Hillyard and Tombs' (2007) social harm approach, Mokhiber (1988, cited in Friedrichs, 2009) research on the effects of Thalidomide and the case study Fashion, flowers and the exploitation of Africa.
It is claimed corporate crime is perpetrated under the guise of business activity defined as ostensibly that takes place during normal and legitimate conduct of business. However, there are two distinct types of corporate crime these being occupational and organisational crimes (Newburn, 2007). A broad overview explains corporate crimes; occupational crime also known as white collar crimes are committed by people within corporations. In contrast corporate crimes; organisational crime are committed by corporations. Newburn (2007) expands on his point validating a separate set of regulatory systems have emerged in order to regulate not criminalise business practices/activities. Corporate harms are governed by a series of regulatory bodies/agencies, such as the Health and Safety Executive (HSE); systems which are referred to as compliance strategies. What this makes visible is why it is argued corporate crime is better viewed through a social harm approach rather than a crime and justice approach because corporate harms are legalised and legitimised within crime and justice systems and/or disguised under the regulatory procedures of business law. Friedrichs' (2009) text The Trusted Criminal declares most serious offences are committed by people in positions of power and authority such as state and corporate representatives. Punch (2000) agrees commenting corporations commit far more violence than any serial killer or criminal organisation. Sutherland (1945) advocated the only difference between criminal and harmful behaviours belongs to the preserve of the powerful such as state and corporate representatives, who enact, evoke, evade and criminalise black letter law. Therefore the major sources of iniquity and harm are legalised and deemed to be legitimate. This helps to address the question because it demonstrates crime and justice are not universal, they are contingent on social, economic, legal and ideological circumstances. This is significant because it reveals why corporate crime/harm is better considered through a social harm approach as it is argued crime and justice is socially constructed. Social constructionism is broadly defined as the exploration of taken for granted or natural social processes, it theorises interpretations of reality including crime and justice are learned through social interactions, expectations and embedded in labelling of people and places. This provides rationale to why 'criminal justice systems, as presently constituted, is simply not a viable forum for tackling corporate wrongdoing' (Gobert and Punch, 2003, quoted in Newburn, 2007, p. 376). What this makes clear is why corporate crime viewed through a crime and justice lens is problematic paving the way for the analysis of alternative understandings such as a social harm approach.
Social harm is defined as an approach which recognises harms have a greater social impact than those acts defined as crime. It raises issues of social justice such as why are some harms omitted or concealed within crime and criminal justice domains and who have the power to define crime? This is relevant because it contests a crime and justice approach suggesting a social harm approach will offer a different lens to view corporate crime. Hillyard and Tombs (2007) developed a social harm approach, this typology of harm encompasses four broad categories these being: physical, financial/economic, denial of cultural safety and emotional and psychological harms. The concept of eco crimes defined as acts of harm against human, non-human and the environment on both local and global levels reinforces a social harm approach. In contrast to crime and justice, social harm is not restricted to jurisdiction and can be applied universally. Moreover it brings to attention multitude of harmful actions and behaviours such as corporate crime/harm (re-categorised as corporate activity) which is permitted or legalised by black letter law and made invisible through traditional, dominant westernised systems of crime and justice. A broad overview of Mokhiber research (1988, cited in Friedrichs, 2009) reveals corporate harm through the distribution of Thalidomide. He claims 8,000 babies, whose mothers had taken Thalidomide during pregnancies were born grossly deformed. The Chemie Grunenthal pharmaceutical corporation had early indicators and were aware of the dangerous and limited effectiveness of Thalidomide, but continued to distribute it, mainly within Europe because it was highly profitable. The case study Fashion, flowers and the exploitation of Africa reveals the development of flower farms along the shoreline of Lake Naivasha by multinational corporations in the pursuit of capitalism, transformed Rift Valley from a community of herders, fishermen and farmers destroying their culture and habitats. In addition flower farming (the new livelihood provided by corporations) exposed workers to chemicals which resulted in skin problems and miscarriage. These case studies are important because they evidence a spectrum of social harms including: physical, financial/economic, denial of cultural safety and emotional harm which may or may not be recognised through crime and justice systems. This is significant because they illustrate corporate harm, in the pursuit of capitalism, appears to be indiscriminate of gender, race, age, class and local boundaries and jurisdictions, the marginalised can be seen on a global scale. What this reveals is how a social harm lens makes visible corporate crimes which are not always recognised within crime and justice lens and this is notably because these case studies clearly demonstrate why corporate crime/harm is argued to be better considered through a social harm approach.
To sum up, a social harm approach provided an alternative way of thinking about taken for granted concepts of crime and justice. A social harm lens has shown why crime and justice are ambiguous, restricted and contradictory because it highlights how states use it to facilitate harms perpetrated by corporations through black letter law, legalisation and business law. In doing so assisting and evading corporate crime/harm from criminal justice scrutiny, demonstrating why it is contested and not as useful as a social harm approach in making visible corporate crime/harm. What this supports is the assertion crime and justice must be viewed alongside the concept of power to be meaningful. In contrast a social harm approach is claimed to offer a social justice response which can be universally adopted, a perspective which is highly debated.
Is global justice exploited to aid the harms committed by corporations?
The validity and creditability of traditional dominant western notions of crime and justice within local and global levels are paradoxically highly contested because they are traditional dominant western notions. These notions are claimed to be constructed by the preserve of the powerful and underpinned by power relations between states and corporate representatives who share ideology such as globalisation, capitalism, neo-liberalism and visions such as a unified market. In order to critique this assertion The United Nations' (2017) Universal Declaration of Human Rights (UDHR) will be deconstructed from its conception to evaluate if local and global crime and justice systems are exploited to aid the harms committed by corporations. To provide a balanced account further material including: The Organisation of African Unity (OAU) (South African History, 2017), together with the World Trade Organization (WTO) (2017) and the concepts of cultural imperialism, and colonialism will be considered.
The international, transnational and supranational cooperation and coordination have advanced into global policing, global crime control: regulation and law enforcement and global justice defined as the pursuit of objective ethical standards which apply to all humans regardless of gender, culture, race, religion or nationality. The Universal Declaration of Human Rights (UDHR) defined as a document proclaiming a common standard of achievements setting out fundamental human rights to be universally protected was drafted by representatives with different cultural and legal backgrounds from all regions of the world (United Nations, 2017). However, this point is contested because it can be argued the UDHR was constructed to serve the best interests of the fifty member countries/states (members in 1948) who enacted it (United Nations, 2017). What this demonstrates is policy at its conception can be manipulated because it can be suggested the thirty articles which make up the UDHR policy reflect traditional western ideology, evidencing how dominant constructions of global justice belong to the preserve of the powerful such as states, corporations and their representatives. Meredith, (2005) assert African voices, and the voices of other colonies went unheard because their voices were represented by their colonial masters defined as the practice of acquiring full or partial political control over another country, occupying it, and exploiting its economy (Dictionary.com, 2017). This makes visible the preserve of European powers and their commitment to their cultural imperialism defined as imposing one’s culture on to another. This is significant because it makes clear the UDHR declaration is a European and Inter-American approach to human rights raising issues about the universality of rights defined as an ethos which is shared by all people in the world (Steiner and Alston, 2000). The contested universality of human rights is supported by The Organisation of African Unity (OAU) who adopted the African Charter on Human and Peoples’ Rights in 1981, which emphasises groups and duties, (South African History, 2017) favouring this over dominant notions derived from western supremacy constituted in policy such as UDHR. This is relevant because it illuminates traditional local and global systems of crime and justice have been exploited by the entrenched and interwoven concepts of imperialism, colonialism and the preserve of the powerful such as states and corporate representatives.
The human rights listed within the thirty articles of the UDHR are separated into two distinct types these being: civil and political rights (CPR) and economic, social and cultural rights (ESCR). In 1960 these were adopted to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) respectively, for the purpose of giving legal force to the UDHR (Equality and Human Rights Commission, 2017). ICCPR protect and respect the civil and political rights of individuals and the ICCPR protects the fundamental rights enabling people to enjoy a broad range of human rights. These definitions and distinctions are important because they shed light on why it is argued both categories of rights are not treated equally because the ESCR/ ICESCR is counterproductive to the principles of free-market capitalist economies. This is supported by the World Trade Organization (WTO) (2017) who negotiates global agreements which are agreed by the worlds trading states and these agreements are ratified within the local by state representatives and corporate representatives who have a vested interest. It can be suggested human rights violations are necessary for a states trade which stabilises the economy and society maintaining peace. This helps to address the question because it reveals social security/stability, democracy, and industrial advancement, these being examples of the greater good are deemed to be legitimate reasons for the exploitation of the UDHR document 'certain occasions or circumstances require that human rights be compromised for a greater good' (Mehigan et al., 2010, p. 230). This is indicative of politics research because it demonstrates how global justice in the form of policy/agreements are exploited to aid the harms committed by corporations in the interests of political and economic stability, while simultaneously protecting the interests of the powerful such as states and corporations and their representatives. The concept of state-corporate crime (Kramer et al, 2002) challenge the notion of greater good revealing how states and corporations exploit criminal justice practice and policy such as UDHR. It can be suggested exploitation takes place within both global and local levels for the purpose of aiding corporate crime/harm which is relabelled as corporate activity to conceal the harms perpetrated by corporations.
To summarise human rights are counterproductive to capitalism and economic growth which are deemed to be the underpinning factors that maintain social stability and world peace. The distinction between the two types of human rights discourse evidenced how the UDHR declaration is exploited to aid the harms committed by corporations because it highlighted the protection of human rights can be compromised in the pursuit of social stability/capitalism. In addition it demonstrated how these intercede and negotiate with the concepts of globalisation, imperialism, colonialism and supremacy. This revealed how and why states through practice and policy have the power to criminalise harms perpetrated by corporations, but choose to use black letter law and regulatory procedures to conceal corporate harms from a crime and justice gaze.
Conclusion
The unpacking of the four key questions supported by an array of data such as academic and government research, media resources and policy directives provided evidence for and against the question: Are states powerless to criminalise harms perpetrated by corporations? Concepts of power, harm, the local and the global were used as a lens' through which the main and key questions were addressed. This was critical because it revealed concepts of crime and justice are politically, economically, socially and culturally prevalent, historically and geographically contingent. In doing so, it illuminated why it can be claimed states are merely averse to criminalising the harms perpetrated by corporations. In contrast it argued this is dependent on one's perspective, suggesting the nature of the relations between states, corporations and the concepts of crime and justice will continue to be highly contested by academics and non-academics alike.
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