1. As Michael Hartney has insisted to us, “corporation” is strictly a legal status, involving segregated assets; limited liability; defined legal rights, duties, and powers; and so forth. Such corporations may be constituted out of a single natural person, and in such a case no problems over the collectivization of responsibility will exist The issues this article addresses have to do with the agency and responsibility of business corporations viewed as organizations or collectives of a certain degree of size and complexity. We suspect, although we shall not discuss the matter here, that three-, two- or one-person organizations are the limiting cases of larger organizations as far as the issues we discuss. The claim is implicit in our article that viewing such organizations as constructs from natural persons as primitive entities is a mistake.

2. See, for instance, Field, Stewart and Jōrg, Nico, Corporate Liability and Manslaughter: Should We Be Going Dutch?” (1991) Criminal Law Review 156Google Scholar; Glasbeek, Harry J., Criminal Prosecution of Corporate Wrongdoingin Poff, Deborah C. and Waluchow, Wilfrid J. (eds.), Business Ethics in Canada (Prentice Hall, 1991) 102Google Scholar; and Wells, Celia, Corporations and Criminal Responsibility (Clarendon Press, 1993).Google Scholar

3. The classic statement is by Savigny. More recent statements may be found in Machen, Arthur W. Jr., Corporate Personality (1911) 24 Harvard Law Review 253CrossRefGoogle Scholar; and Radin, Max, The Endless Problem of Corporate Personality (1932) 32 Columbia Law Review 643.CrossRefGoogle Scholar

4. See, for instance, French, Peter A., The Corporation as a Moral Person (1979) 16 American Philosophical Quarterly 207Google Scholar. Hanly, Ken, The Moral Responsibility of Corporations (1991) 30 Dialogue 555CrossRefGoogle Scholar, draws on French to defend a similar kind of theory. Neither essay confronts the issues raised in this article.

5. Insofar as it is important to distinguish the corporation as a legal entity from the business organization as a collective entity, French's concern is, pace his own terminology, with the business organization, not the corporation. Nonetheless, we shall retain his terminology where it would be more confusing to change it.

6. Despite the considerable literature on French's argument, no rigorous reconstruction of it has been provided, nor has he provided one in his own work. We believe our reconstruction important both for revealing where the argument rightly presents the fundamental theoretical issues and where the difficulties with the argument lie.

7. This definition of agency is that defended by Donald Davidson (see Agency, in Binkley, Robert, Bronaugh, Richard, and Marras, Ausonio (eds.), Agent, Action, and Reason (University of Toronto Press 1971), 7CrossRefGoogle Scholar, hence the terms “D-agent” and “D-agency.” Briefly, the definition is as follows: A person is the agent of an event if and only if there is a description of what he did that makes true a sentence that says he did it intentionally. The account is referred to as a semantic account of agency as a reflection of its emphasis on the truth conditions of sentences.

8. Strictly speaking, French claims that D-agency is necessary (not necessary and sufficient) for moral personhood (not for agency). So premise (2) should read strictly (2*) if X is a D-agent, then X is a moral person. But with (2*) instead of (2), the argument is blatantly unsound. French gives no other account of agency in the article and claims at the end that D-agency is necessary and sufficient for moral personhood. Much of the intervening discussion, however, is an explication of agency, not moral personhood. We have chosen to reconstruct the argument by attributing to French a stronger version of premise (2) than the text strictly licenses, so that the argument is then at least valid. Of course, the issue remains of the truth of this stronger premise, and we address that later.

9. French never directly claims this, but the premise is justified. It is uncontroversial; it is implicit in everything he does say; in any case, causal responsibility of this kind is not at issue at all in the present discussion.

10. Keeley, Michael, for example, in Organizations As Non-persons (1981) 15 Journal of Value Inquiry 149CrossRefGoogle Scholar, argues that organizations cannot qualify as agents because they have no intentions at all. He distinguishes among (i) goals for an organization as the preferences of people for organizational outcomes; (ii) goals of an organization as outcomes intended by the organization itself; and (iii) consequences of an organization—i.e., any outcomes of joint behavior. He argues that, while it is possible to identify (i) by observing participants in the organization and to identify (iii) by observing behavior, (ii) cannot be identified. Clearly, when Keeley claims in opposition to French that an organization has no intention of its own, he is talking about intentionality in a strong sense in which it can only be a property of human persons. He pays no attention to the semantic notion of Davidsonian agency. This is important because, if the notion of agency Keeley denies to organizations in criticizing French is different from the one French himself actually employs, then the criticism of French must fail.

11. Critics have not realized this point Werhane, Patricia, for instance, in Persons, Rights and Corporations (Prentice Hall, 1985)Google Scholar, argues that intentionality may be a necessary condition for being a moral person, but it cannot be, she urges, a sufficient condition as well. According to her, French's mistake is to confuse the two conditions. She postulates a company called Robotron, operated solely by robots and computers. Robotron has all the requirements of a CID structure in a corporation in French's sense, and it is an intentional system. But it is not, Werhane claims, a moral agent or a moral person.

Werhane's objection contains two mistakes, both related to the notion of Davidsonian agency. First, for French, intentionality is only a semantic condition of Davidsonian agency. It is not offered as a sufficient condition of any stronger form of agency, neither for one that presupposes the intentionality of human beings, nor one sufficient for moral personhood. Thus, the story about Robotron, however forceful against views that do regard intentionality as sufficient for moral personhood, does not cut against French. Second, as Werhane is well aware, actual corporations are humanly constituted intentional systems. She considers whether being a humanly constituted intentional system is sufficient for moral personhood and rejects the idea on the grounds that, although it is true that corporations can be held morally responsible, what it is about the corporation as a humanly constituted intentional system that makes this true is the actions of tile persons and groups forming the corporation, who unproblematically have the kind of intentionality that leads to moral responsibility. As an argument against French, her reasoning is question-begging. French is aiming to show that moral personhood flows ultimately from Davidsonian agency. To assume another source of moral personhood without confronting French's argument for his own source gets us nowhere.

12. Donaldson, Thomas in Corporations and Morality (Prentice Hall, 1982)Google Scholar argues that the internal decision-making structure of an organization cannot be the basis for determining the intention of the organization. Without its employees and shareholders, an organization's decision-making rules and policies are just items on pieces of paper. Rules or policies cannot tell us what they intend any more than the rules of a game can tell us what they or the game itself intend. We can see that Donaldson, too, is taking the notion of intention as a full human one. By introducing Davidsonian agency, French tries to define intention as merely a semantic expression of a deliberate disposition to do something in a certain manner or to realize a state of affairs. Given this definition, it seems perfectly possible for an organization to be a Davidsonian agent, and it seems quite plausible to suggest that the semantic criteria for the attribution of D-agency have to do with decision-making structures and policy recognitors. Donaldson's argumentassumes a conception of intention not at issue in French's argument.

13. Manning, Rita in Corporate Responsibility and Corporate Personhood 3 (1984) Journal of Business Ethics 77CrossRefGoogle Scholar argues that no reference to metaphysical personhood need be made in establishing organizational moral responsibility. She proposes instead that organizational moral responsibility flows from organizational agency, which she sees as unproblematic. The general conclusion of her argument, that corporations should be treated by consequen tialist, rallier than deontological, normative standards is not so far from our own. We are concerned here with her objections to French. She takes him to assert that D-agents are just a subclass of metaphysical persons and to assert that to be a D-agent is to be able to act voluntarily in a way that implies moral personhood. The difficulty with both claims is that the aim of French's argument is to establish the D-agency of organizations without reference to controversial assumptions about metaphysical personhood or voluntariness, and then to argue that these more controversial claims follow from D-agency. Any criticism of French must respect the initial starting point of his argument, a constraint we believe our own criticisms satisfy.

14. There is a description that makes true a sentence that says Jo acted intentionally: Jo meant to pour away what was in that cup.

15. Jo could have poured your coffee away negligently, of course, and then would have whatever responsibility attaches to negligent, rather titan intentional, harm-doing. We ignore this complication here.

16. This is Davidson's original example.

17. Issues of causal responsibility of course arise here. But for Don's holding the coffee, it would not have been spilt. Is that enough to make him a cause? Or is the cause only the person who jiggled Don's arm, Don and his arm being the instrument the person used to effectuate the spilt coffee? We leave these puzzles to the reader.

18. By “weak” we mean simply that deployment of it yields as genuine cases of agency a much wider range of cases than the paradigm of intentional action as illustrated by type-1 cases. Compare the distinction in criminal law between “basic” or “general” and “specific” intent.

19. The favorite counterexamples of French's critics.

20. We won't comment on the likelihood of the supposition's being true. By contrast, investors in the fund itself, being one step further removed, are quite likely not to know such things. In the 1970s, divestment campaigns caused many academic societies and institutions to find out all sorts of things about where funds in which they had invested themselves had investments.

21. It was pointed out to us by Ken Hanly that one could interpret French's argument to imply full intentionality as a presupposition of responsibility, not of agency. Then it would be a mistake to imply, as we do, that French infers moral personhood directly from agency. Even if Hanly's interpretation is more faithful to French's text (which we arc not sure about), the underlying philosophical difficulties would remain. The attribution to organizations of a form of responsibility that licensed a direct inference to full intentionality would be straight forwardly question-begging.

22. What other value the story might have we will consider later.

23. We should note that Hanly, field/Jōrg, and Wells all borrow French's apparatus of CID structures and basic policy recognitors to build an argument for organizational/corporate moral responsibility that does not mention Davidsonian agency.

24. Wittgenstein, Ludwig, The Blue and Brown Books (Harper and Row. 1965), at 58.Google Scholar

25. Velasquez, Manuel, Why Corporations Are Not Morally Responsible far Anything They Do (1983) 2 Business and Professional Ethics Journal 1, 4, 7CrossRefGoogle Scholar; we are grateful to Ken Hanly for drawing our attention to this passage.

Despite the dualism patently implicit in the quote from Velasquez, the claim that human and corporale psychology are crucially different does not turn on the thought that human beings (unlike organizations) really do perform acts of will, shine inner beams of light, etc. In fact, such talk is highly problematic as regards human beings, as Gilbert Ryle, for example, long ago well demonstrated in The Concept of Mind (Barnes and Noble, 1949). Rather, as John Wisdom observed in response to Ryle, , “the peculiarity of the soul is not that it is visible to none but that it is risible only to one,” Other Minds (University of California Press, 1968) at 226Google Scholar. There is by contrast no “one” to whom the organizational soul is similarly risible.

26. We mean by the “partly/fully” terminology simply to allude to the difference between type-1 and type-2 cases of action, as elucidated by the Davidsonian account. We arc not claiming that “partly” and “fully” are accurate and wholly perspicuous descriptions.

27. These sentences are crude summaries of far more complex doctrines. See Wells, , supra note 2Google Scholar, and Note, Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions (1979) 92Google Scholar Harvard Law Review 1227, passim, but especially at 1246–57. The point here is simply to give the flavor of the doctrines.

28. See Field, and Jōrg, , supra note 2, at 159.Google Scholar

29. Davidson, , supra note 7, at 7.Google Scholar

30. Davidson in fact considers this a pretty rough-edged proposal and makes some moves later in the article to smooth it out; it is not relevant to pursue the topic here.

31. For the distinction between absolute and strict liability, and the transition in Canada from a regime of the former to one of the latter in the case of public welfare or regulatory offenses. see R v. City of Sault Ste. Marie (1978) 40 CCC (2nd) 353 (SCC).Google Scholar

32. Contractual rights such as collective bargaining agreements, or definitions of jurisdiction, may function as side constraints on the utility calculation. They are not part of the calculation itself except insofar as they have fuzzy edges that bring them in at die periphery of the utility calculation. The decision-making remains fundamentally consequenlialist.

33. Examination of the theoretical foundations of the commercial expression doctrine is a major project. For a beginning, see Shiner, Roger A., Freedom of Commercial Expression in Waluchow, W. J. (ed.), Free Expression: Essays in Law and Philosophy (Clarendon Press, 1994) 91.Google Scholar

34. Virginia State Board of Pharmacy et al. v. Virginia Citizens Consumer Council Inc. et al., 425 U.S. 748 (1976).Google Scholar

35. Attorney-General of Quebec v. Irwin Toy Ltd; Moreau, et al. , Interveners [indexed as Irwin Toy Ltd. v. Quebec (Attorney-General)] (1989) 58 DLR (4th) 577.Google Scholar

36. Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980)Google Scholar; Board of Trustees of the State University of New York et al. v. Todd Fox et al., 109 S. Cu 3028 (1989).Google Scholar

37. See Royal College of Dental Surgeons of Ontario et al. v. Rocket et al. [indexed as Rocket v. Royal College of Dental Surgeons of Ontario], (1990) 71 DLR (4th) 68.Google Scholar

38. See Kozinski, Alex and Banner, Stuart, Who's Afraid of Commercial Speech? (1990) 76 Virginia Law Review 627CrossRefGoogle Scholar; The Anti-history and Pre-history of Commercial Speech (1993) 71 Texas Law Review 747Google Scholar; McGowan, David F., A Critical Analysis of Commercial Speech (1990) 78 California Law Review 359CrossRefGoogle Scholar. The issue was also raised by Coase, R. H. in Advertising and Free Speech (1977) 6 Journal or Legal Studies 1CrossRefGoogle Scholar, an article publishedjust prior to the decision in Virginia Board.

39. Economic values do sometimes appear in arguments for regarding commercial expression as coming within the ambit of freedom of expression: see, e.g., Sharpe, Robert J., Commercial Expnssion and the Charter (1987) 37 University of Toronto Law-Journal 229. at 243CrossRefGoogle Scholar; Neuborne, Durt, The First Amendment and Government Regulation of Capital Markets (1989) 55 Brooklyn Law Review 5, at 9Google Scholar; Virginia Board at 765Google Scholar; and Rocket at 74, 79Google Scholar. But in this context, they wear an air of circularity. “As the case of commercial expression shows, more informed economic choice is a freedom of expression value. So commercial expression should be protected by a right of freedom of expression, because it serves the goal of more informed economic choice.”