At the end of chapter three I concluded my account of moral responsibility by saying that fitness to be held morally responsible depends on a subject’s ability either to exercise
reflective agency (and thereby take moral ownership of the actions and outcomes occasioned) or to mediate such agency. The argument here is intended to show how corporate agents can exercise such agency. I want to put aside the worries that there are ways in which corporate agents will never be like human agents, and even that some of these features are ones upon which human moral agency depends45. Rather, the idea is to show how corporate entities may exercise a kind of reflective agency that is sufficient to endow them with the capacity to deserve to be held morally responsible, whether or not it mirrors the relevant features of human reflective agency. The necessary preparation for this argument has been done in the previous chapter and the beginning of this one. To tie these arguments in with my account of moral responsibility, I now need to give a more detailed account of a plausible version of reflective agency that may be demonstrated by a corporate agent. To be clear, it is not the case that such an account is necessary to demonstrate the plausibility of every version of collective moral responsibility I surveyed in the previous chapter. Take Miller’s account: while a collective property exists (a collective action), which grounds a distinct account of collective responsibility (and also, according to my earlier argument, the existence of a distinct collective entity), the collective entity does not bear responsibility itself. It performs an action that none of the individuals could perform on their own, and they each, if appropriate, bear
responsibility for this action – whatever the requirements are for an action to be undertaken freely and reflectively, these requirements are satisfied by the members of the collective. That is why responsibility only accrues at the individual level.
However, once group structure is introduced, the properties that may be generated at the group level multiply. The collective entity may now make judgments and have preferences,
45
Remember here Moran’s account of free action and how it depended on the possibility of first person phenomenological experience (Moran, op. cit.).
and act on the basis of these functions. And it may do these things even if it is not true that any of the individuals that make it up do these things. The question that arises now is whether it is possible for properties to be predicated at the collective level that are sufficient to ascribe moral responsibility to the collective. This is the challenge at hand. Now, however, it is
necessary to be more explicit about exactly what those properties are. When they are simply inherited from the individual members of the collective such questions can be glossed over – not because they are uninteresting, but because the challenge for accounts of collective responsibility is typically to put them on the same footing as accounts of individual
responsibility, leaving underlying issues with the latter to one side. The place to start in this investigation is with the notion of intention. Despite various differences of opinion on the nature of moral agency, one point of general agreement is that intentional agency is a necessary condition of moral agency. There is, unfortunately, less agreement on the question of what it is to act with intention.
One account of intention that was endorsed by French in his early work is based on the possession of desires and beliefs about the world, together with the ability to act on those beliefs in order to satisfy a desire (French, 1984). Thus the ability to act intentionally is the ability to act on ‘some desire combined with the belief that the object of the desire will be achieved by the action undertaken’ (ibid: 40). Although they do not discuss this question in so many words, List and Pettit adopt a very similar account of intentional agency as the basis for their analysis of corporate agents. As set out earlier, they adopt three conditions that
something must satisfy to possess agency:
‘First feature. It has representational states that depict how things are in the environment. ‘Second feature. It has motivational states that specify how it requires things to be in the environment.
‘Third feature. It has the capacity to process its representational and motivational states, leading it to intervene suitably in the environment whenever that environment fails to match a motivating specification.’ (List & Pettit, 2011: 20)
The second feature is the requirement to possess desires, and the first to possess beliefs. The third feature simply requires the ability to act on the basis of beliefs in order to satisfy desires. So List and Pettit agree with French on the conditions for intentional agency. Things are not so straightforward, however, as in his later work French changes his mind on the nature of intentionality (French, 1996). Here he adopts Michael Bratman’s ‘planning’ account of
intentionality where ‘[o]ur understanding of intention is in large part a matter of our
understanding of future directed intention... Plans are not merely executed. They are formed, retained, combined, constrained by other plans, filled in, modified, reconsidered, and so on. Such processes... are central to our understanding of... intention’ (Bratman (1999), quoted in French (1996)). Thus in order to possess intention, a corporation must be able to instantiate such planning processes. While there is a lot to say on the finer points of intentional action I want to maintain that this detail can be put to one side for present purposes. There are
features of intentional agency that are common across accounts, such as the two outlined, and it is these features that are important for the way that intentional agency enables moral agency. Indeed, although French changes his account of intention, he maintains the same strategy for demonstrating that it may be possessed by organisational entities (ibid.). The important point is that intentional actions are undertaken in pursuit of something. This could be satisfying a desire or fulfilling a plan, and how these objects of pursuit differ is not of great concern. More generally, the idea is that to pursue something is to value it, and the aim of pursuing it is to realise that value. Talk of desires or plans is a way of cashing out in more detail how the recognition of such value may be instantiated. This sketch of the notion of intention allows me to set up, as a working definition, the idea of intentional agency as the ability to act in pursuit of a value or set of values46.
I now turn to reflective agency which is, as I have already argued, equivalent to moral
agency47. The first question to address here is what it is that the intentional agent is supposed to reflect upon. The answer to this is simply the value, the realisation of which is the goal of their action or actions. To be reflective just is to endorse the value that is being pursued, in the appropriate way. Of course, this answer requires an explanation of what constitutes an
‘appropriate’ way to endorse a value, such that it is done reflectively. Here we come back to the thought that when human beings endorse values that they pursue, they do so in a way that is not open to corporate entities. For example, there is an irreducibly first person, phenomenological aspect to the perception and approval of the value. Whether or not this is
46 While this sketch of the nature of intention is sufficient for current purposes, I clarify it further and
distinguish it from situations in which agents are constrained to pursue certain values, in §34.
47
Here my account differs from that of both French, and List and Pettit. French is explicit in his claim that intentional agency alone is sufficient to establish moral agency. And while List and Pettit again do not use this exact language, the conditions they set out as necessary to be able to hold a corporate agent as morally responsible (List & Pettit, op. cit.: 155) do not amount to more than a certain kind of exercise of intentional agency. In particular, the second condition that requires the agent to be able to make normative judgments is expanded by saying that ‘a group agent must be able to form judgments on propositions bearing on the relative value of the options it faces’ (ibid: 158). It must be able to pursue value, not reflect upon it.
the case, other accounts of reflective endorsement are available. While they were developed to account for human experience, and as such are controversial, I am interested in whether they are a good way of explaining the reflective behaviour of corporate agents, and this is a different matter. In chapter three I briefly mentioned Frankfurt’s account of what it is for an agent to act freely and in doing so to own the action it undertakes (Frankfurt, 1971). It is this account I develop in more depth now as an account of corporate reflection.
Frankfurt starts by pointing out that when we act, we do so on the basis of wants or desires (concepts he considers synonymous). However, it is also possible to have desires whose objects are not the conducting of actions, or their outcomes, but instead whose objects are themselves desires of this previous kind. This distinction he explains by differentiating
between first order and second order desires. A first order desire is ‘a desire to act in a certain way’; a second order desire is ‘a desire to desire to act in a certain way’. These second order desires are central to Frankfurt’s concept of free will, which he takes to be central to the idea of a person, and the capacity to hold moral responsibility. To see this, we also need to understand the idea of an ‘effective desire’. An effective desire is one that actually moves a person to act, and so becomes that person’s will. Not all desires are effective desires – each person will have many desires and many of these will conflict; they will also all be of different strengths and thus only a certain desire or desires will move an individual to act in any given situation.
Combining these ideas together, Frankfurt comes up with the idea of a ‘second-order volition’. A person has a second-order volition when they have a second-order desire both to possess a certain first order desire and also for that first order desire to be their will. This definition allows Frankfurt to conclude that ‘[i]t is in securing the conformity of his will to his second- order volitions, then, that a person exercises freedom of will’ (ibid: 15), and it is in the exercise of such free will that we find the essence of a person. Frankfurt does not distinguish between different kinds of person, but he does consider what his approach means for moral
responsibility. Put simply, Frankfurt thinks that to have free will of the kind he has described is sufficient to have moral responsibility. He draws this conclusion while at the same time arguing that his approach to free will is quite compatible with a deterministic world view. Provided a person has acted as they desire, and this desire is one that they desire to be their will, it does not matter, on Frankfurt’s account, what more we may want to say about where this second-order volition came from, or if they could in some sense ‘have acted otherwise’ (ibid: 19).
Two questions arise from this outline of Frankfurt’s account of freewill and the capacity for moral responsibility: (1) can organisational entities be reflective in the sense of forming second-order desires and volitions? And (2) even if they can is such a capacity really sufficient to ground them as moral agents? In the following sections I develop an answer to (1) in the context of the bank example from earlier. This example is also intended to support a positive answer to (2) since it is presented in the language of moral responsibility in a way that is both plausible, and is in keeping with common ways of talking about such situations. While this might be considered a rather roundabout way of supporting a positive answer to (2), it is in line with my strategy of arguing for the possibility of the moral responsibility of corporate entities by making such a possibility the most plausible conclusion, in light of a generally plausible account of the activity of corporations48.