Regulating Corporate Power

A project in the Business and Human Rights research programme

This research project (led by Dr Nick Friedman) critiques the ways in which law both constitutes corporate power (primarily through corporate and property law) and controls the exercise of that power, whether by way of the criminal law, civil regulation, or human rights law. It adopts a holistic, interdisciplinary, and comparative analysis of the massive web of legal rules to which corporations are subject, demonstrating the conflicting or unintended ways that they interact. It considers how corporate liability regimes can be designed most effectively, focusing in particular on the deterrent role of individual liability for corporate executives. Most fundamentally, the project seeks to articulate the place of the corporation in public law and political philosophy.

The first publication for this project, which is forthcoming in the Modern Law Review, studies the complex interplay between corporate criminal liability and corporate constitutional rights. It argues that a popular justification for corporate criminal liability—namely, that corporations are moral agents—provides a strong justification for giving human rights to corporations, which corporations have typically wielded to undermine attempts to regulate them. This result follows from mainstream approaches to punishment and human rights which predicate each on the status of moral agency. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. The conclusions of this publication suggest difficult trade-offs: either corporate criminal liability should be abandoned, or alternatives to mainstream theories of punishment or human rights must be developed.

Work in progress examines the current national and international initiatives to hold corporations accountable for human rights violations in transnational commercial contexts, arguing that the imposition of liability exclusively on the corporate entity will be ineffective in deterring such violations unless it is supplemented by individual liability for corporate officers. Further projects will examine the moral responsibility of individuals for misconduct that takes place in corporate environments, and will discuss how corporate governance mechanisms might be restructured in light of a public law paradigm that conceives of the corporation as a potentially abusive concentration of power.