by Ken MacVey
Do corporations have free will? Do they have legal and moral responsibility for their actions?
Many argue that legal and moral responsibility must rest on free will. If there is no free will there cannot be such a thing as legal or moral responsibility. But consider these two questions and their potential answers.
Do corporations have free will? Answer: No.
Do corporations have legal and moral responsibility for their actions? Answer: Yes.
Both answers intuitively sound plausible. On reflection these two answers, when taken together, logically imply legal or moral responsibility may not necessarily have to rest on free will. But maybe something is wrong with these answers. Maybe corporations do have free will of some sort. Or maybe any responsibilities corporations are said to have really rest on human stakeholders who do have free will. And if that is right, what are the implications for the legal and moral responsibility of corporations as their decisions become increasingly driven by AI instead of by people?
Under American law corporations are considered to be artificial persons. They are artificial in the sense that they are creatures of law. They are persons in the sense that they can be legal actors or agents. They can own property, enter contracts, sue and be sued, and file for bankruptcy. They have rights. They have First Amendment rights to free speech. They are entitled to compensation under the Fifth Amendment if their property is taken by eminent domain. They have legal obligations—such as paying taxes. Corporations can also commit crimes, even manslaughter. For example, Pacific Gas & Electric a few years ago pled guilty to 84 involuntary manslaughter charges stemming from a horrific fire in Northern California that PG&E caused. Corporations can have goals—sometimes they are recited in mission statements. They can take stands—such as endorsing by corporate resolution a ballot measure.
Historically corporations were not always legally treated as persons or as entities that could be charged criminally. Originally under the common law ( Anglo-American judicial precedents developed over hundreds of years) corporations could not have what is called mens rea, the “guilty mind” required for charging a crime. Nor could corporations commit an actus reus, or a wrongful physical act, also required for charging a crime. Judges ruled that corporations did not have minds so they could not have wrongful intent or a “guilty mind.” Judges would emphatically note that corporations do not have mouths to speak with, eyes to see with, hands to touch things and people with, thus they could not commit the “actus reus” or physical act required for being charged with a crime. As Supreme Court Chief Justice Marshall observed in 1819 in another context “a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.” Read more »