Clockwork Corporations: A Character Theory of Corporate Punishment

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The abstract and introduction below are from the paper published in the Iowa Law Review, Forthcoming; U Iowa Legal Studies Research Paper No. 2017-32.  Link

Abstract

Retribution and deterrence currently drive the politics and scholarship of corporate criminal law. Since the potential harms and private gains of corporate crime are so large, corporate punishment under these theories must be exacting…too exacting. In fact, it is difficult under current law to punish many corporations formally without killing them. Ironically, this fact leads to the under-punishment of corporations. Prosecutors — understandably hesitant to shutter some of the country’s largest economic engines — increasingly offer corporations deferred prosecution agreements in lieu of charges and trial.

 

This Article considers corporate punishment for the first time from the framework of a third major theory of punishment — character theory. Character theories of punishment focus first and foremost on instilling good character and civic virtue. Criminal law scholars have largely marginalized character theory because it struggles as a suitable framework for individual punishment. But the practical and moral problems character theory faces in the individual context do not arise with the same force for corporations. In fact, character theory offers the possibility of punishing corporations in a way that preserves and enhances the social value they create while removing the structural defects that lead to criminal conduct. Along the way, the Article defends some heterodox proposals, including abolishing the corporate fine and allowing sentencing judges to balance the need to punish against non-criminal aspects of a corporate defendants’ “character.”

 

“How about this new thing they’re talking about? How about this new like treatment that gets you out of prison in no time at all and makes sure that you never get back in again?” ~ Anthony Burgess, “A Clockwork Orange”

 

Introduction

 

It is actually not so new. Though unpopular for the last few decades, punishing criminals by reforming them was once the predominant approach. Anthony Burgess poignantly described one prominent concern that led to its demise: Coerced reform risks turning people into “clockwork toy[s] to be wound up by . . . the Almighty State.” Forcefully changing character and personality is an affront to the self-defining freedom that is the root of human dignity.

 

While generally marginalized today, punitive reform is undergoing a resurgence for a different kind of “person”—the large, publicly-traded corporate criminal. Prosecutors are at the forefront of the movement. In the deals they cut with corporate suspects, prosecutors often require programs of reform. Implicit in how prosecutors now treat corporate defendants is the recognition that their fundamentally different nature allows for a different approach to punishment. Burgess’ complaint loses all its force in the corporate context. Corporations are not, and cannot be, free, selfdefining loci of dignity.

 

Scholars and lawmakers are still behind the curve. While prosecutors have been experimenting with reform-as-punishment, the dominant academic and political discourses on corporate crime still focus on deterrence and retribution. There is the seed of a third path in what prosecutors are doing. This article seeks to uncover the implicit logic behind corporate prosecutors’ decisions. In its present form, prosecutorial practice is focused on reform and rehabilitation. Were the logic of the practice pushed and perfected as an approach the entire criminal justice system could take toward corporate punishment, an organizing theory that is different from deterrence and retribution emerges—character theory. As argued below, character theory opens new conceptual space for solving some of the most persistent problems in corporate criminal law.

 

One of those persistent problems is the dark and unjust underbelly to the way prosecutors handle corporate criminals—criminal justice is often softer on corporate criminals than on real people. On paper, the Department of Justice officially treats corporations as ordinary people. Somehow, though, corporations are much less likely to see criminal charges. Less than .03% of corporations faced prosecution in the last quarter century. To put this in perspective, 8.6% of the U.S. adult population has a felony conviction. There are many possible explanations for this discrepancy, including over-criminalization of some forms of individual conduct and over-enforcement against certain demographics. Another possibility is that the large, public corporations that are the focus of this article receive some of the lightest treatment.

 

The perception that large, public corporations routinely escape conviction is troublingly paradoxical. These corporations are among those most likely to commit crimes, and their conduct most deeply impacts society. They have an extremely wide base of liability. Under current doctrine, they are automatically liable for almost any crime any individual employee commits on the job. This adds up to a staggering degree of exposure for large corporations—the seventy-five largest corporations in the United States employ over 100,000 potential points of liability.  Though the de jure scope of corporate criminal liability has continued to expand since the early twentieth century, the chance of conviction for large public corporations continues to shrink. This is particularly puzzling in an environment where the outrage of Wall Street Occupiers over corporate unaccountability still reverberates in public sentiment. Failure to hold corporations accountable frustrates society’s effort to condemn corporate criminality and can cast a shadow on the broader legitimacy of criminal law.

 

This discrepancy between the scope of corporate criminal liability and the infrequency of conviction is in part to due to how prosecutors go about trying to reform corporations. For every conviction of a public corporation, and with increasing frequency, there is at least one other where prosecutors decline to take the corporate suspect to trial and instead enter into a specially negotiated deal: a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA). Unlike guilty pleas, these agreements do not result in a guilty verdict; they may not even require an admission of wrongdoing.  Corporate DPAs and NPAs are extremely controversial. They face a bevy of criticism from many perspectives: that they are too onerous, that they are too lenient, that they violate basic tenets of political morality, that they fail basic norms of transparency, and more. It is through these DPAs and NPAs that prosecutors frequently impose the reforms that interest this article. In addition to undermining corporate convictions, this article discusses below how poorly positioned prosecutors to be agents of corporate reform.

 

Many people blame prosecutors for the pitfalls of DPAs and NPAs, but prosecutors are hard to fault. DPAs and NPAs are a reasonable response to the legal and practical constraints prosecutors face, including, most importantly, the effects a successful conviction can have on a large public corporation. In 2004, prosecutors learned a hard lesson—their shortlived courtroom success against Arthur Andersen, one of the largest U.S. accounting firms, turned into a long-lasting catastrophe that put the company and its 75,000 employees out of business.  For many firms, including Arthur Andersen, there are life-ending collateral consequences that automatically follow conviction, such as debarment or revocation of the privilege of doing business with the government. When a successful conviction could entail massive harm to the very social welfare prosecutors are supposed to protect, DPAs and NPAs are a natural choice.

 

There is a way to keep the good without the bad—to hold corporations accountable without destroying them and to reform corporations without relying on prosecutors to do all the work through DPAs and NPAs. This article argues that the stark choice that forces prosecutors to decline corporate prosecutions in favor of DPAs and NPAs is an unnecessary feature of corporate criminal law. It draws attention for the first time to punishment theory as a potential source of problems and solutions. The article argues that low conviction rates and a host of other familiar problems with corporate criminal law are, in large part, a consequence of the focus on deterrence in scholarship and retribution in public political discourse. These drive prosecutors and corporations out of the courtroom.

 

Though prosecutors are increasingly attentive to corporate reform, scholars and lawmakers have overlooked character theory as a framework for corporate punishment. While adopting a broadly consequentialist perspective,38 the Article points out that preventing corporate crime does not necessarily require deterring it. The Article does this by introducing character theory as a systematic approach for structuring corporate punishment. Character theory would refine the sorts of reform and rehabilitation that prosecutors currently pursue and make them the exclusive mode of corporate punishment. Character theory would avoid the need for DPAs and NPAs, and ultimately do more to prevent corporate wrongdoing than deterrent approaches can. It could also bring corporate criminal law into better alignment with the goals of retributive theorists. While various actors already attempt to reform corporations at various stages of the criminal justice system, their efforts are piecemeal and ineffective because they lack any coherent, coordinating theory. Poor execution and the distorting influences of deterrence and retribution continue to hamstring any chance of success. Fixing corporate character as the sole criterion for the extent and method of corporate punishment leads to some surprising, though ultimately beneficial, recommendations, such as abolishing the corporate criminal fine.

 

After detailing the problems retributivism (Part II) and deterrence theory (Parts III) bring to corporate criminal law (Part IV), the article introduces character theory (Part V) as an alternative. With the conceptual foundation set, the article shows the work character theory could do improving a diverse range of problems in corporate criminal law (Part VI). The article closes by addressing concerns that may arise from the perspective of other theories of punishment—the character approach proposed here performs well by their metrics too (Part VII).

 

One goal of this Article is to work so far as possible within the constraints of present legal and political realities. In theory, there may be ways to promote corporate reform and solve the problems discussed in this Article without turning to character theories of punishment. Some scholars think that scrapping corporate criminal law entirely and relying only on civil liability would improve things.41 But such proposals are fanciful in the current political climate. It is also far from clear whether the sorts of corporate reform that this Article advocates could be accomplished by using non-criminal fora. As such, abolishing corporate criminal law and other similarly radical options are outside this Article’s methodological ambit. It takes the basic contours of corporate criminal law as given and shows how they can function best. Character theory can do that work.

The full paper can be downloaded without charge from the Social Science Research Network electronic library here.


Mihailis Diamantis is an associate professor of law at the University of Iowa, in the College of Law and the Department of Philosophy.  He writes about criminal law, corporate responsibility, and the philosophy of action.  He holds a PhD in philosophy from NYU and his JD from Yale.  Prior to joining the faculty at Iowa, Mihailis was an instructor and researcher at Columbia Law School.  He clerked for Judge Alex Kozinski on the Ninth Circuit Court of Appeals and worked on white collar investigations as an attorney at Debevoise & Plimpton LLP.He attended the 2016 Summer Session “Virtue & Happiness” of the project Virtue, Happiness, & the Meaning of Life. 

New and forthcoming books by our scholars

9781107155329Michael Gorman, Associate Professor of Philosophy, Catholic University of America is the author of Aquinas on the Metaphysics of the Hypostatic Union, June 2017, Cambridge University Press.

Kristján Kristjánsson, Deputy Director in the Jubilee Centre for Character and Virtues and Professor of Character Education and Virtue Ethics at the University of Birmingham, is the author of Virtuous Emotions, forthcoming in May 2018, Oxford University Press.

Heather C. Lench, Associate Professor & Department Head, Department of Psychological and Brain Sciences at Texas A&M University, is an editor on the volume Functions of Emotion, Springer, in January 2018.

 

51fVH4MrJuL._SX331_BO1,204,203,200_.jpg514VAhuihzL._SX327_BO1,204,203,200_.jpgOwen Flanagan, James B. Duke Professor of Philosophy and Professor of Neurobiology at Duke University is the author of The Geography of Morals: Varieties of Moral PossibilityOxford University Press, 2017 and co-editor of The Moral Psychology of Anger, forthcoming from Rowman and Littlefield.

 

 

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Nancy Snow, Director of the Institute for the Study of Human Flourishing, edited The Oxford Handbook of Virtue, Oxford University Press; it includes a chapter on Aquinas by Candace Vogler.

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 Paul T. P. Wong,Founding President of the Meaning-Centered Counselling Institute, Inc., has a chapter in The Routledge International Handbook of Critical Positive Psychology, edited by Nicholas J. L. Brown, Tim Lomas, Francisco Jose Eiroa-Orosa. London, UK: Routledge.

“A Consistent Ethic of Solidarity: Transcending Self, Transforming the World” – Part 1

On October 14, 2017, Cardinal Blase J. Cupich delivered the Saturday Keynote, “A Consistent Ethic of Solidarity: Transcending Self, Transforming the World,” at our Capstone Conference. We’re reprinting the text in two parts; Part 2 will go up tomorrow. To watch the video and learn more about the conference, click here.

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Introduction

Thank you Professor McGinn and all at the University of Chicago and the organizers of this Conference for your warm hospitality and welcome. It really is an honor to be with you this evening and I am very grateful to be invited to participate in this Capstone Conference entitled Virtue, Happiness and the Meaning of Life. This is an important conversation for which – over a 28 month period – you have gathered scholars and professionals from various disciplines to focus on self-transcendence as integral to understanding the interrelationships of virtue, happiness and the meaning of life. Tonight I have been asked to add to that conversation, which I will do by considering how the notion of solidarity found in Catholic Social Teaching, when pursued as a consistent ethic for both individuals and society, might help to flesh out the meaning of self-transcendence, which you rightly state is needed for human flourishing and building up the common good. As I studied the information you sent me on your virtue project, it occurs to me that it shares much in common with the our understanding of solidarity in the Catholic tradition, such that we can benefit from each other in teasing out some points of convergence. And so, I want to begin by pointing out some connections between virtue and solidarity. I will then move on to what I consider some fault lines in the present age that give urgency to pursuing virtue marked by solidarity. I will conclude by suggesting some ways, or maybe priorities, all of us might want to consider as we move forward in solidarity to build up the common good in a way that fosters virtue, happiness and the meaning of life.

 

The Connection between Virtue and Solidarity

I have to admit I have no hesitation introducing the topic of solidarity into this conversation of virtue, particularly since your starting point is that virtue is not an individual pursuit, practiced and observed only for oneself as a personal improvement project. Rather, virtue has to do with one’s relationships to others and the world. So the ultimate measure of one’s virtue is not only how one personally improves, but how the common good is fostered and furthered by virtuous individuals as a whole. The pursuit of virtue by an individual is about stretching the identity of the person beyond the circumference of one’s body and life as defined by the individual. We often talk about expanding our mind, using more brain cells, but there is another way to increase our capacity as humans and that is by constantly exploring ways to intersect with the lives of others in a way that enhances their lives and the world’s good.

In other words, virtue’s end is solidarity Virtue when rightly pursued aims at uniting humanity through a reawakening of our interdependence as a human family. Pope John Paul II in his groundbreaking encyclical, Sollicitudo Rei Socialis, called humanity to “see the ‘other’-whether a person, people or nation…as our ‘neighbor,’ a ‘helper’ …a sharer, on a par with ourselves, in the banquet of life to which all are equally invited by God.”

 

It is worth noting that John Paul made a special point in pressing those in position of authority and power to consider their particular responsibility in being virtuous on a global scale, not just for their own sakes or the benefit of the nations they serve. “World leaders,” he urged, need “to recognize that interdependence in itself demands the abandonment of the politics of blocs, the sacrifice of all forms of economic, military or political imperialism, and the transformation of mutual distrust into collaboration. This is precisely the act proper to solidarity among individuals and nations.”[i]

Pursuing virtue in the key of solidarity does not come easily and will cost each of us something. It first of all will require in the words of the Compendium of Catholic Social Teaching “men and women of our day (to) cultivate a greater awareness that they are debtors of the society of which they have become a part. They are debtors because of those conditions that make human existence livable, and because of the indivisible and indispensable legacy constituted by culture, scientific and technical knowledge, material and immaterial goods and by all that the human condition has produced. A similar debt must be recognized in the various forms of social interaction,” the Compendium continues, “so that humanity’s journey will not be interrupted but remain open to present and future generations, all of them called together to share the same gift in solidarity.”[ii]  Or, to put it in baseball language, especially appropriate in these days in Chicago, if you are successful, don’t think you hit a home run when all along you were “born on third base.” Or, again, this awareness of what we owe to others will require the kind of humility found in Isaac Newton’s famous saying: “If I have seen further, it is by standing on the shoulders of giants.”[iii]

Fault Lines and Urgency

Let me now say something about the urgency of a consistent ethic of solidarity in view of some fault lines present in society today. As I do so, my hope is that the link between the virtue project that relies on self-transcendence and a consistent ethic of solidarity will become clear.

 

Radical Polarization

The first obstacle we face today is a radical polarization in society. Our world has changed a great deal in our life time due to many factors that divide humanity. Our era is plagued by global terrorism. It irresponsibly tolerates the exploitation of limited resources and is threatened by climate change, which by its own inertia will imperil future food security as a result of decreased crop yields and result in the abandonment of populated areas due to rising sea levels. As a result of these unchecked forces of economic exploitation and globalization, many people feel excluded, while others are literally excluded as they are left homeless, or forced to migrate, by wars and privation. This has left us fearful of one another in a world marked by great divisions over race, ethnicity, religion and place of origin.

 

Without oversimplifying, the challenge for us today is not only that there is a division over issues, but humanity is divided. No longer is it that issues are siloed, people are. Their social networks, the media they consult, all operate in  silos, bereft of challenge or debate, isolated by differences of opinion or politics, race or social class in a way that obscures our shared humanity, as for instance with the issue of immigration where we are losing the ties that historically have united us as a nation of immigrants. And it is not too strong to say that this sense of disconnectedness is being legitimized not only by voices in the streets but by those in the halls of governance here and around the world, giving rise to xenophobia, nationalism, populism, racial intolerance.  All of this makes entire populations more vulnerable to disturbing influences, and centripetal forces which only further divide, while pretending to offer as solutions distorted views of the role of the economy and politics and how we relate to other nations and deal with global conflicts.

 

Libertarianism

A second fault line is a growing libertarian approach in the present day which is impacting, and I believe is distorting, the way we think about and respond to our politics, the economy and the ecology. In this context, I want to refer you to an excellent paper given by Bishop Robert McElroy in January, 2016 at the Symposium “Erroneous Autonomy: The Dignity of Work,” sponsored by the Institute for Policy Research and Catholic Studies at The Catholic University of America, Washington D.C. In his talk Three Kinds of Erroneous Autonomy he offers analysis of how libertarianism constitutes a compellingly different pathway for humanity at this moment in history which stands at odds with human solidarity. These conflicting pathways are based on two utterly divergent conceptions of the nature of the human person, resulting in two distinct trajectories when it comes to the meaning of economic life, and the goal of politics and the ecology in this era of globalization.

 

The example of the economy will suffice to make my point about the problematic claims of libertarianism. In fairness, it is important to recognize that many libertarians share with Catholic Social Teaching a respect for human dignity. Human dignity anchors their insistence on human freedom. They rightly argue that this dignity is not given by society but by the Creator and therefore freedom, self-determination and all other human rights are inalienable, echoing the principles in the documents of democracy. However, advocates of a libertarian philosophy stop short in considering what this means. They fail to uphold that since this dignity belongs to all human beings in common, it implies the solidarity of all peoples. By uncoupling human dignity from the solidarity it implies, libertarians move in a direction that has enormous consequences for the meaning of economic life. Let me put it more sharply:

 

  • In our understanding of solidarity, the human person seeks and claims an integral development, morally, spiritually and emotionally, which is joined intrinsically to the communities that sustain him or her. For libertarians, the human person is the autonomous individual, man the producer and man the consumer.

 

  • For advocates of solidarity, in this age of growing globalization, inclusion and economic security for all are measures of economic health, requiring global structures that help mold the forces of market capitalism to advance solidarity and dignity for all; while in contrast the libertarian has a one-dimensional measure of economic growth proposed for decision making, advocating that market forces left to themselves are the best arbiters of economic progress. It is for this reason that when it comes to politics, while solidarity seeks the common good, the libertarian advances a politics that seeks to maximize the freedom of markets and individual choice.

 

Challenges of Communications Technology

A final consideration as we think about the challenges of creating a greater sense of solidarity is the ongoing development in communications technology and its impact on the youth of the world. This technology is moving us and particularly young people to greater isolation while giving the impression of linking us. We can shield ourselves from the demands of others by the click of a key or by not responding on a device which we use to limit our interaction with the world. For many young people their smart phone is the only portal for interaction, but also information which they will believe. But, it is also the case that less personal and more electronic means of communication have gained a foothold in the minds of young people globally when it comes to news they believe over-against human encounters.  A menacing instance of this, of course, is the radicalization of young people who are being fed ideologies of hate, a manipulation that leads to the acts of terrorism we are witnessing today. Additionally, as communications technology continues to flatten the world as Thomas Friedman describes, there is an even more ominous threat looming when it comes to the youth of the world.  While it is true that many in our era have been lifted out of poverty, the numbers of people, especially children not just poor but trapped in poverty and exclusion, who are migrants, living in exile from their homes because of wars and famine, are staggering. Global communications surely conveys a certain sense that we are united in this world but many children living in abject poverty have good reason to believe that the world cares little about them. We may be together on this planet but they are receiving the message that they are not one of us. Living with no hope yet tantalized by what they see in the world of opulence, they will be challenged to deal with rising expectations in a non-violent way.

 

But, as a pastor working with families and parents as they raise their children, I am concerned about how this phenomenon of communicating through modern technology is also impacting family life, particularly the way youth and adults within a family relate, communicate and trust each other. Some years ago, a diplomat was telling me of a conversation he had with his daughter, trying to explain to her why he could not attend her dance recital, having been charged with serious negotiations impacting world peace that would force him to travel abroad. She was unconvinced, unsympathetic and hurt; what he said was not credible. But then, some days later she saw a news interview her father gave on a website explaining the importance of the meeting that took him away from home. She called her father to tell him she now understood because she saw it on a website channel. The moral of the story, if you want to talk to your children and have them believe you, send them a link to your YouTube upload.

 

Seriously though, I am convinced that we should consider the impact of the ever developing communications technology on our world especially our youth, which I am describing here, as a wakeup call. A good place to start, it seems to me, is to pay more attention to mining the results of your value project and the tradition of solidarity for resources that might challenge this narrow approach to communication and offer one that is more integrated and authentically human.

 

In fact, faced in this urgent moment with seemingly intractable challenges we face today, we would have much to gain by exploring how your advocacy of promoting virtue through  self-transcendence and the consistent ethic of solidarity I speak about today have the potential of informing each other to better contribute to human flourishing and the common good. My explanation of a consistent ethic of solidarity as aiming at uniting humanity through a reawakening of our interdependence as a human family, while not exhaustive of what Candace Vogler describes as your project in her piece featured on your virtue blog, seems to have a great deal in common. Let me quote just a bit of it here: “self-transcendence,” she writes, “shows itself when I live my life and understand my life as essentially connected to a good beyond my own comfort, the security and comfort of my friends and immediate family, the goods of personal achievement, success, self-expression, and the like. My life is lived through participation in a good that goes beyond personal achievement, expression, security and comfort, beyond even the need to promote those goods for members of my intimate circle. I work on behalf of bettering the community in ways that will help strangers … I have a self-transcendent orientation to the living of my daily life. My own life is a part of some good crucial to good life more generally, as best I can understand, serve, and embody that larger good.”

[i] John Paul II, Sollicitudo Rei Socialis, 39.

[ii] The Compendium of the Social Doctrine of the Church.

[iii] Newton, Isaac. “Letter from Sir Isaac Newton to Robert Hooke”. Historical Society of Pennsylvania. Retrieved 7 August 2016.

VIDEO: “A Consistent Ethic of Solidarity: Transcending Self, Transforming the World” – Cardinal Blase J. Cupich

Cardinal Blase J. Cupich delivered the Saturday Keynote “A Consistent Ethic of Solidarity: Transcending Self, Transforming the World” for the Capstone Conference for the project Virtue, Happiness, & the Meaning of Life. He was introduced by Bernard McGinn, Naomi Shenstone Donnelley Professor Emeritus of Historical Theology and of the History of Christianity in the Divinity School and the Committees on Medieval Studies and on General Studies.

 

We’ll publish the text of this talk in Part 1 and Part 2 blog posts on Wednesday and Thursday this week.

 


Cardinal Blase Joseph Cupich obtained his B.A. in Philosophy from the College of St. Thomas in St. Paul, Minnesota, in 1971. He attended seminary at the North American College and Gregorian University in Rome, where he received his Baccalaureate in Sacred Theology in 1974, and his M.A. in Theology in 1975. Cardinal Cupich is a graduate of the Catholic University of America in Washington, D.C., where, in 1979, he received his Licentiate of Sacred Theology degree in Sacramental Theology. He also holds a Doctor of Sacred Theology degree, also in Sacramental Theology, from the Catholic University of America, awarded in 1987, with his dissertation entitled: “Advent in the Roman Tradition: An Examination and Comparison of the Lectionary Readings as Hermeneutical Units in Three Periods.” Additionally, Cardinal Cupich was the Secretary at the Apostolic Nunciature in Washington, D.C. He also served as Chair for the USCCB Committee for the Protection of Children and Young People from 2008-2011 and for the National Catholic Educational Association Board from 2006-2008. In 2016, Pope Francis appointed Cardinal Cupich to the Congregation for Bishops.

Frankl’s Self-Transcendence Model and Virtue Ethics – Part 1 of 2

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Paul T.P. Wong is Professor Emeritus, Trent University, and a scholar with Virtue, Happiness, & the Meaning of Life.  Timothy Reilly is a Postdoctoral Fellow in the Developing Virtues in the Practice of Science Project at the University of Notre Dame, and was a participant in our 2017 Summer Seminar, Virtue, Happiness, and Self-Transcendence.

This post is part 1 of a 2-part series.

Introduction

The main thesis in this presentation is that Viktor Frankl’s self-transcendence (ST) model provides a useful ethical framework for living and behaving well. We also argue that his model is consistent with the Aristotelian and Thomistic moral theory of virtue ethics in important ways (Hursthouse & Pettigrove, 2016).

Virtue is an important topic for psychology, philosophy, and business management because it is concerned with moral excellence and ethical behaviours that are crucial for the well-being and flourishing of individuals and communities. The real challenge for any moral theory is whether it has the practical value of helping people live as ethical, decent human beings in daily concrete situations.

Frankl’s ST model is very practical, because it was developed and tested in wrestling with the ethical challenges of how to be a decent human being under two extremely difficult conditions in real life. The first challenge had to do with suffering—how to live with a sense of human dignity and significance even when one was facing unimaginable degradation, atrocities, and a cruel death. The second challenge had to do with power—how to prevent anyone in a position of power from its corrupting influence and becoming a monster like Hitler.

Summary of Previous Presentations

At the first Virtue Scholars meeting, I presented the meaning hypothesis of living a good life (Wong, 2015a), based on my interpretation of Frankl’s concept of meaning-seeking (Wong, 2014) and his ST model (Wong, 2016a). More specifically, the meaning hypothesis posits that our primary motivational need of seeking meaning (i.e., the will to meaning) and the meaning-mindset of finding meaning (i.e., meaning of life) constitute the motivational and cognitive factors of ST. My focus was on the importance of the perspective of the meaning-mindset.

My second presentation elaborated on the meaning hypothesis by explaining how the striving towards some goals of ST is a promising pathway to live a good life of virtue, happiness, and meaning (Wong, 2016b). My focus was on the motivational aspect of seeking meaning. After reviewing various conceptions and models of ST, I concluded that Frankl’s two-factor model of ST (cognitive and motivational factors) represents the most comprehensive ST model for research and intervention.

At the December 2017 Virtue Scholars working group meeting, I sketched the various components of Frankl’s ST model and their inter-relationships as shown in Figure 1. I also introduced the four defining characteristics of ST as measured by the Self-Transcendence Measure (STM) (Wong, 2016c). I proposed that these four dimensions could differentiate the virtuous type of genuine ST from the evil type of pseudo-ST because of their inherent moral orientation (Wong, 2017).

In this present paper, the focus is on the basic tenets of Frankl’s ST model and their moral implications for living a virtuous life. We attempt to integrate Frankl’s work with moral philosophy.

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Figure 1. Frankl’s two-factor theory and characteristics of self-transcendence.

Basic Assumptions of Frankl’s Self-Transcendence Model and Virtue Ethics

Frankl’s answer to the two ethical challenges identified in the introduction is fourfold: (1) the defiant power of the human spirit; (2) the capacity for freedom and responsibility; (3) the primary motivation for ST; and (4) the power of the meaning-mindset.

Defiant Power of the Human Spirit

Viktor Frankl (1985) described the defiant power of the human spirit as the freedom to take a courageous stance towards fate and the human capacity to transform a tragedy into a triumph. He defined courage in terms of the noetic or spiritual dimension; thus, moral courage had a spiritual origin.

Recently, Wong (2015b) interpreted the defiant power as the moral courage to maintain one’s cherished values and human dignity in the face of suffering and death; this courage is the key to true grit in surviving constant and unimaginable assaults on one’s physical and psychological integrity.

Without such moral fortitude in the face of danger, we would not be able to have the character strength to preserve and realize the moral values that make us decent human beings. This is essentially an existential courage that enables us to take a defiant stand against a harsh fate and do what is morally right despite personal dangers.

Frankl’s view of courage is consistent with both the classic and Catholic conceptions of courage as a virtue. Plato (1894/2000) considers courage as one of the four cardinal values. Aristotle (Nicomachean Ethics, 3.6-9) defines courage as have the right “amount” of fear (“the mean”); thus, a courageous person still fears things that all human beings are afraid of, yet has the courage to face these fears as one should for some good and worthy goal, such as facing death in a battle to protect one’s country. Thomas Aquinas considers fortitude or courage primarily in terms of endurance with firmness. He says, “The principal act of courage is to endure and withstand dangers doggedly rather than to attack” (Summa Theologica, IIb, 123.8). Courage is expressed when an individual is pursuing a difficult or dangerous goal that is sufficiently valuable to be worth the difficulty or danger.

In sum, having moral courage is a prerequisite for doing the right thing or making the right choice. It is easy to do what is expedient, but it takes courage to do what is right. It is an easy way out to compromise or surrender in the face of great danger, but it takes great courage to stand up for one’s core values and beliefs. Thus, moral fortitude is just the starting point; there are additional conditions one must fulfill in order to be a fully functioning decent human being.

Capacity for Freedom and Responsibility

“Freedom of will” figures prominently in Frankl’s ST model. His model hinges on the responsible use of freedom in all situations. In Man’s Search for Meaning (Frankl, 1985), he declares:

Man is not fully conditioned and determined but rather he determines himself whether he give in to conditions or stands up to them. In other words, man is self-determining. Man does not simply exist but always decides what his existence will be, what he will become in the next moment. By the same token, every human being has the freedom to change at any instant. (p. 154)

Every person has the freedom and responsibility to choose their own pathway and life goals. Their choices determine their character, well-being, and destiny, even when we factor in fate or luck. Every situation presents us with the choice between good and evil, between acting on the bright side or the dark side of our nature; we can choose between spiritual joy and carnal pleasures, between practicing kindness and abusing our powers.

Shantall’s (2004) research on Holocaust survivors supports Frankl’s thesis on moral responsibility. Here are some important lessons from Holocaust survivors:

Their active efforts to maintain moral values in the face of the onslaught against them, made their lives take on greater spiritual content and meaning. Living with a profound value-directedness and moral responsibility, they experienced a sense of true destiny (something or someone to live or survive for) with peak moments of triumph and even joy. (p. 3)

The human capacity for freedom of will allows us to deliberate and choose between good and evil, between desires and values. Our awareness of the moral implications of our choices makes us morally responsible for our decisions and actions. Aquinas attributes this freedom to our rational or volitional abilities. Even though our nature may predispose us to certain ends, we have the freedom to choose between the ends, as well as the pathway to achieve a certain end. Aquinas conception of freedom, however, does not entail that all choices are equal, but rather a teleological notion of freedom- the more free one is the more able one is to pursue the good (Titus & Moncher, 2009). Another way to phrase this is that the virtuous individual is free to be just, and so to fulfill their obligations and responsibilities, choosing the proper actions for the proper reasons (Titus, 2016).

Frankl’s ST model represents an agent-centered moral theory which emphasizes the human being as a moral agent (Harris, 1999; Slote, 2001). For Slote (2001), a virtuous life depends on both a particular agent’s inner dispositions and actual motives. Therefore, the virtuous kind of ST needs to stem from a good inner disposition and a good motive.

Frankl’s model recognizes human beings as both moral and instrumental agents. It is consistent with the psychological literature of self-determination theory (Ryan & Deci, 2000) and self-efficacy theory (Bandura, 1977), which are predicated on the human capacity for freedom and responsibility. In moral psychology, research on moral identity (Colby & Damon, 1992) and moral education (Bebeau, Rest, & Narvaez, 1999) emphasizes that individuals whose moral goals and values are central to their self-concept feel responsible for acting in consistently moral ways.

Tomorrow in Part II, we will discuss the Motivation of Searching for Self-Transcendence.

VIDEO: Jean Porter, “What should we fear? Courage and cowardice in public life”

Moral theologian Jean Porter gave the talk “What should we fear? Courage and cowardice in public life” on Monday, June 5, 2017 at 7pm in the Swift Hall 3rd Floor Lecture Hall at the University of Chicago.  The video below includes Candace Vogler’s introduction and the audience Q & A following the talk.

Cooperation in evil and Thomas Aquinas’s understanding of justice

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We’re presenting a short series of abstracts of the work-in-progress our scholars presented and discussed at their June 2017 Working Group Meeting.

Kevin Flannery, S.J., is Professor of the History of Ancient Philosophy, Pontifical Gregorian University in Rome.

As the participants in our seminar may recall, I am writing a book on the ethics of cooperation in evil. At an earlier meeting of the seminar, I discussed some of the problems contained in the treatment of such cooperation as found in the manuals of Catholic moral theology of the 18th, 19th, and early 20th centuries. On that occasion, I expressed agreement with Elizabeth Anscombe’s criticism of that tradition as vitiated by what she calls “Cartesian psychology,” according to which “an intention was an interior act of the mind which could be produced at will.” I also expressed then a preference for an analysis in terms rather of Thomas’s Aquinas’s understanding of the moral virtue of justice. In my presentation, I would like describe how I understand this virtue and how it helps us to determine when a person’s—or indeed an institution’s or a government’s—cooperation is immoral. This will involve an explanation of how justice, according to Thomas, stands in relation to the other virtues, especially prudence. It will also involve an account of how justice, which is a virtue of the will, bears upon the consciences of individuals.