IDEOLOGY, HEGEMONY, AND EMPIRICISM

Abstract

In this article we engage in an extended critique of the thesis that the illegal conduct of corporations necessarily calls for different forms of regulation than other kinds of law-breaking. The proponents of that view argue that the unique nature of such illegalities is one reason why they necessitate a particular type of enforcement attitude or response. They advocate a strategy that produces compliance through persuasion rather than through the threat of sanctions. Another reason advanced is that corporations are not, as many would have it, ‘amoral calculators’, but rather ‘political citizens’ who may indeed sometimes err but are more prone to organizational incompetence than deliberate wrongdoing. Thus they need advice rather than chastisement: regulatory agencies should act as consultants rather than policemen. We will take each element of this argument in turn and show that it is neither logically nor empirically persuasive. We will then turn to the issue of how to make corporate regulation more effective and show that this requires a consideration of both the most suitable strategies for the enforcement agencies to adopt and the most appropriate legal framework for determining the criminal responsibility of these corporations.

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