April 22: Jean Porter, “The Perfection of Desire: Habit, Reason and Virtue in Aquinas’ Summa Theologiae”

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Our Scholar Jean Porter will give the 49TH Annual Père Marquette Lecture in Theology lecture “The Perfection of Desire: Habit, Reason and Virtue in Aquinas’ Summa Theologiae” at Marquette University in Milwaukee, Wisconsin:

2pm, April 22

Raynor Memorial Library. The Beaumier Suite  | 1355 W. Wisconsin Avenue

Reception to follow. Free and open to the public.

Link to flyer

Talk description

Aquinas claims that the virtues are habits, that is to say, stable dispositions oriented towards desires of a certain kind.  As such, like all habits they presuppose rationality and enable a distinctively human way of feeling and acting.  Thus, if we want to make sense of what Aquinas says about rationality and the virtues, it makes sense to turn first to the more fundamental ways in which habits generally speaking are shaped by, and responsive to reason.

 

porter_200w.jpgJean Porter is the John A. O’Brien Professor of Theology at the University of Notre Dame, and a scholar with the project Virtue, Happiness, & the Meaning of Life.

Humility

View of basalt stack Hvitserkur at Vatnsnes peninsula

A few months ago I participated in a conference centered on the theme of humility at the University of Michigan, Ann Arbor. And ever since I have been thinking a lot about humility, its nature as a virtue, its problematic tendencies. One the one hand I do feel, as I’m sure a lot of us do, that humility is rather under-valued—not to mention difficult to find—in American life today. On the other hand I suppose I am enough of a Nietzschean to feel that there is something a bit off-putting about this alleged virtue. (Or perhaps a Humean – it was Hume, after all, who famously disparaged humility as a “monkish virtue.”)  Doesn’t humility involve putting ourselves down? Doesn’t it conflict with pride, and with confidence, both of which, surely, do have some positive value, at least when appropriately felt and expressed? Moreover, doesn’t humility involve pretending to think worse of ourselves than we really do, thus committing us to dishonesty and insincerity?

 

Perhaps I find humility particularly perplexing because the first person I think of when I think about humility is Socrates, and in particular the Socrates of Plato’s Apology. The Apology, as I read it, is all about humility, and in particular about intellectual humility. Of course, it is also about courage. Socrates displays a magnificent courage throughout that dialogue; he stands firm against his accusers, indeed he achieves a majestic role reversal, becoming the accuser of his accusers, putting on trial those who have brought him to trial. He so mercilessly goads the Athenian jury that he practically forces them not only to convict him but to condemn him to death, even as it is obvious that there were a great many things he could have done—falling on his knees and begging for mercy, promising never to practice philosophy again, proposing exile as a penalty during the sentencing phase—that would have saved his life. Socrates’ own explanation of his courage—and this, really, is the heart of the Apology—is that it is grounded in humility. He does not fear death, because he is humble enough not to pretend to know what he does not know; not knowing what death is, or whether it is a good or a bad thing, he thinks it not only unreasonable but unvirtuous to fear it. (He shows his humility in other ways, too. In particular, contrary to the claims of his accusers, he refrains from asserting grand metaphysical claims about the nature of the universe and such. How would he know such things? In this, it is worth noting, he differs greatly from the Socrates of Plato’s later dialogues, who—serving as Plato’s mouthpiece—is happy to assert sweeping and speculative metaphysical positions.)

 

Socrates’ complaints against his accusers, and indeed against the Athenians in general, are more than anything else directed toward their lack of humility, their insistence that they understand things they clearly do not understand. Socrates has spent his life exposing such pretenders (and thereby made a lot of enemies). He points out that the Athenians as a whole spend little time or energy on self-reflection, let alone self-criticism. They have settled for a deeply inadequate theory of the good life, one that focuses on reputation and worldly wealth and neglects both inquiry and virtue. They act as if they possess a fully adequate understanding what it was to live a good human life; yet—as is so easily demonstrated—they have given barely any thought to that matter at all, and all they have to offer on the subject are banal clichés.

 

The thing is, though, that the Socrates of Plato’s Apology does not strike us as a humble man. He is prideful. Indeed, he is arrogant. He goads the Athenians, and he looks down on them. He tells them that no one has served the city as well as he, that they will likely never find a man as good as him to replace him, that a fitting “punishment” for his lifetime of service to Athens would be to be feted in the Prytaneum. His so-called “human wisdom” consists in his knowing how little he knows; but he accepts the claim of the Oracle at Delphi that, precisely because he knows how little he knows, he is the wisest man in Athens. And it is clear both that he takes great pride in this and that he holds his fellow Athenians in a certain degree of contempt.

 

I find this combination of humility and arrogance—a combination where the two seem not merely to exist side by side (human beings are complex, as we know, and can contain multitudes), but to be intimately linked—quite fascinating. And every once in a while I come across another example of what seems to me the same combination. Nietzsche, at times, seems to exhibit it. My favorite contemporary example is the novelist John Banville. In an interview with the Paris Review,[1]  Banville was asked, “Do you really hate your own novels?.” He responded, “Yes! I hate them. I mean that. Nobody believes me, but it’s true. They’re an embarrassment and a deep source of shame. They’re better than everybody else’s, of course, but not good enough for me.”

 

Perhaps Banville was simply making a joke. I don’t think so. I think he meant what he said, that while he was probably exaggerating a bit for effect—I am not convinced that Banville truly believes his novels are better than those of any other contemporary writer—he was being, for the most part, sincere. I would say, too, that he is one of the few contemporary writers who could get away with saying such a thing. He is a brilliant writer. And it matters, in this context, that he is a brilliant writer, because the remark, made by any lesser artist, would not mean the same thing and would not be interesting at all. It would be an expression of misguided arrogance, and nothing more. Whereas, coming from John Banville, the statement seems to represent something quite different: a sincere attempt to come to grips with the recognition that a given body of work might simultaneously be, on the one hand, among the best that is being produced, and on the other hand, deeply disappointing.

 

But isn’t it arrogant to be disappointed in what one acknowledges to be the best there is, to hold oneself up to inhuman, godlike standards? Isn’t this, in itself, really just an indirect way of complimenting oneself, of saying, I believe myself to be capable of such greatness that I hold myself to standards the rest of you could not possibly aspire to, perhaps could not even conceive. When Banville says that his novels are “not good enough for me,” the clear implication is that they would be good enough for the rest of us—isn’t it?

 

Perhaps, though, this is to focus in the wrong place. Perhaps Banville’s dissatisfaction with his own work is not so much a reflection of his view of his own capabilities, but rather a principled dissatisfaction, the kind of determination that moves even the greatest artists—and, perhaps, the most admirable moral saints—to be unsatisfied with what they have done, no matter how impressive it is. Perhaps it is what moves them to keep trying to achieve on a completely different, even unprecedented level. (Many notable altruists, too, have been profoundly dissatisfied with their contributions to the world, despite the fact that they have sacrificed and accomplished far more than the rest of us.) Viewing things from this angle may encourage us to adjust the way we think about humility, to think of it as being naturally and directly opposed not so much to pride, or even arrogance, but rather to complacency. We might take a view, that is, that resists defining humility as having a low assessment of oneself and one’s abilities, or anything of the sort, but rather equates it with a tendency to be, as a matter of principle, perpetually unsatisfied with oneself and one’s abilities, and to be committed to developing and improving them.

 

One way to fail to be humble, then is to be fully satisfied, to the point of complacency, with oneself as one is: to feel that one has achieved enough, has contributed enough, has achieved a sufficiently comprehensive and sophisticated understanding of the world, etc. (This, again, is the failing Socrates sees everywhere around him in Athens; if we look, we may find it everywhere around us, and inside us, as well.) Exhibiting this kind of humility seems fully compatible with holding a realistic assessment of one’s own achievements—even if you happen to be a genius or a saint, a John Banville or a Socrates. It does not require arrogance; it may, indeed, undermine arrogance, and whether or not it does so it will surely help prevent one of arrogance’s most harmful effects, which is to encourage us to so love ourselves as we are that we become reluctant to admit that we might sometimes be wrong or that it is possible for us to improve and important that we do.

 

As someone who works in higher education, thinking about humility in this way not only helps me appreciate its value, it helps me appreciate how endangered it is in our current cultural environment. Students need a sense of the world’s vastness and complexity, a sense of how much there is for them to learn, if they are to prosper in university. Without this sense they will miss the fact that university is a site for exploration, a place that offers myriad possibilities for becoming a fuller, more complete person, and a place at which their goals and desires can not only be sharpened and deepened, but altogether altered, perhaps even discarded in favor of new and better goals and desires. But the dominant model of education, and of American life, does not encourage such a sense. Rather, students often arrive at university with a set of pre-established goals they are rigidly committed to, deeply inclined to discount the possibility that they might learn there something that will reshape their sense of who they are and what they might want out of life. Approaching the university as consumers—which is how today’s university administrators for the most part seem to think of them—they are seeking not self-improvement or self-development, but a well-defined product to fit into a pre-defined and often shallowly conceived slot.

 

Many incoming university students, moreover, tend to have absorbed an attitude of radical egalitarian neutrality that has led them to think not only that everything they might study and pursue at university is equally valuable (so long, that is, as it contributes to their career goals) but also that all views and opinions are equally valid, regardless of why one accepts them or what one has to offer in support of them. Indeed, a great many people in our society suffer from this, both inside and outside the university. It is difficult for people who have accepted such attitudes to believe that they have anything to learn at university – or, for that matter, anything to learn from open conversations with their fellow citizens, or by reading newspapers whose viewpoints they are not guaranteed already to agree with. It is difficult, in such an environment, for people to take seriously the idea that their beliefs, and their ways of forming and evaluating beliefs, might be improved—and, in particular, improved by encounters with people who come from different backgrounds or have different commitments and beliefs. What recognizing this requires is, precisely, a certain sort of of humility. It would be good for us to find ways of teaching and encouraging this kind of humility, because the fact that it is in such short supply is, it seems to me, a major contributor to bleakness of the situation we find ourselves in today.

 

[1] https://www.theparisreview.org/interviews/5907/john-banville-the-art-of-fiction-no-200-john-banville


Troy Jollimore holds a PhD in Philosophy from Princeton and currently teaches at California State University, Chico. He is the author of three books of philosophy, including Love’s Vision and On Loyalty.   He is also the author of three collections of poetry: At Lake Scugog, Tom Thomson in Purgatory, which won the National Book Critics Circle Award for poetry, and Syllabus of Errors.  He has received fellowships from the Stanford Humanities Center, the Bread Loaf Writers Conference, and the Guggenheim Foundation.

Sport, Virtue, and the Olympics

IOCringsSport and virtue have been linked since ancient times, when the two were often interchangeable. The Greeks believed that sport helped cultivate virtue, and that virtue in turn helped one excel as an athlete. Ancient texts such as the Iliad feature not only battles but also athletic encounters such as footraces, where human cunning as well as human strength might carry the day, and show victors to be favorites of the gods. Aristotle believed that sport was akin to contemplation, taking us out of ourselves to concentrate on something greater.

 

Today we celebrate athletes as exemplars of courage, persistence, generosity, and discipline because we believe in the virtues inherent in athleticism, as well as believing in athletes as virtuous. Sports coverage almost always features back stories of athletes overcoming adversity, injury, and personal setbacks on their way to success, accommodating audience expectations that gifted athletes must also be gifted human beings. Conversely, we continue to be shocked and disappointed when great athletes demonstrate vice or bad character traits. We require that our athletes perform virtue, with advertisers often pulling endorsements from players who are less than stellar role models, and giving endorsements to those competitors who have shown especially strong discipline and conviction.  Television coverage of this year’s Olympic skaters seems especially interested in the persistence and discipline of young athletes, fixating on the sheer duration of time—all of their young lives– spent training for national and international competition, as well as the sacrifices that accompany such training. Each night of skating has featured film footage and photographs of U.S. team siblings Alex and Maia Shibutani as small children training together, while the internet has parsed and rehashed interviews with former Olympians Tara Lipinski and Johnny Weir where each claimed not to have attended their high school proms because “we had no childhoods.”

 

It is no surprise, then, to find descriptions of the virtue cultivated by practicing sports and the virtue inherent in sports celebrated everywhere on the official Olympic site Olympic.org. We at the Virtue Project thought we would share with you some of the highlights of the site, and encourage you to explore the resources on virtue and sport the Olympic committee has put together there.

 

Paul Christesen, Professor of Ancient Greek History at Dartmouth College, USA, notes the importance of the Olympic games for the Greeks, who interrupted and delayed wars in order to participate in them:

 

“The classic example is that when the Persians invaded Greece in the summer of 480 (BC) a lot of the Greek city states agreed that they would put together an allied army but they had a very hard time getting one together because so many people wanted to go to the Olympics. So, they actually had to delay putting the army together to defend the country against the Persians.”

 

Of special note, too, is the “About” tab, where links to information of the Olympic mission of promoting sport for hope, the ethics of sport, women and sport, healthy body image, peace through sport, and promoting Olympism in society, among many other topics, can be found. The “Promote Olympism in Society” tab is especially inspirational, with links to the Olympic Charter, material on education through sport and social development through sport, and the declaration, in bold, that reads:

 

OLYMPISM IS A PHILOSOPHY OF LIFE, EXALTING AND COMBINING IN A BALANCED WHOLE THE QUALITIES OF BODY, WILL AND MIND. BLENDING SPORT WITH CULTURE AND EDUCATION, OLYMPISM SEEKS TO CREATE A WAY OF LIFE BASED ON THE JOY FOUND IN EFFORT, THE EDUCATIONAL VALUE OF GOOD EXAMPLE AND RESPECT FOR UNIVERSAL FUNDAMENTAL ETHICAL PRINCIPLES.

 

We hope as you watch the Olympics and rejoice in the courage and grace of so many diverse athletes from our own country and from all over the world, you take a minute to page through the Olympic website, and to contemplate the ancient Olympics, where the thrill of sport could redirect the passions of war, and our modern Games, founded on the notion that the cultivation of character through training and competition might bring the people of different nations together to celebrate human endeavor in the spirit of brotherhood and world peace.

 

 


Jaime Hovey is Associate Program Director for Virtue, Happiness, & the Meaning of Life.

“Teaching Virtue”

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Our scholar Nancy Snow has co-authored a paper with Dr. Scott Beck on “Teaching Virtue”, and a free draft is available online.
ABSTRACT: Can virtue be taught? The question is a controversial one, harking back to Confucianism and the Platonic dialogues. We assume that virtue can be taught in the sense that teachers can influence character development in their students and explore the challenges and opportunities of teaching virtue from a variety of perspectives. In part I, Nancy E. Snow surveys a number of theoretical perspectives on teaching virtue which have been or are being implemented in schools. Scott Beck, the principal of Norman High School, describes in part II the grassroots approach to character development recently initiated at his institution. In part III we discuss how features of the Norman High initiative illustrate aspects of the approaches discussed in part I, and conclude with general observations about roles for askesis, or disciplined practice, in changing school communities and cultivating character.
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Explaining Apparent Features of Modesty

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This post is one of two of excerpts from the paper “Modesty as an Executive Virtue,” forthcoming in American Philosophical Quarterly. Yesterday’s excerpt was “Modesty and the Moderate Evaluative Attitude.”

 

I have described the main features of the moderate evaluative attitude, which I claim to be central to modesty. Note that modesty’s operative requirement is a negative one. It serves to exclude various things (e.g., not having the stance that one is fundamentally worthier than others), rather than to positively require something (e.g., believing that all persons are equal). In this section, I show how my account can explain why a modest person has the apparent features of modesty, by which I roughly mean the patterns of behavior, desire, cognition, or attention that people commonly ascribe to a person they consider modest.
To begin, it is commonly said that a modest person tends not to be arrogant or
undervalue others even if she has superior qualities. This feature can be explained by the fact that the way she respects herself and others checks the possible temptation to think that her excellent qualities render her fundamentally worthier than others. Recall that my account does not require the modest person to evaluate herself as less worthy than she really is. Such an evaluative attitude would be more appropriate for self-deprecation or servility. Thus, my account does not ground modesty in any disposition to focus on one’s flaws or to underrate one’s own worth. I believe self-deprecation and servility are vices related to the way one evaluates oneself, just like arrogance and self-conceit. The reason modesty is commonly confused with self-deprecation or servility, while contrasted to arrogance or self-conceit, is because human beings are inclined to have higher opinion of themselves than they really deserve. This is analogous to the reason courage is often confused with recklessness while contrasted to cowardice, although both are vices associated with it. If human beings were naturally inclined to lower and efface themselves, modesty would have rarely been confused with self-deprecation or servility.

 

Another apparent feature of modesty is that a modest person tends to de-emphasize or downplay the worth attributed to herself for her good qualities (e.g., “Oh, stop it. I’m not that great!”). This is because, on my view, a modest person is committed to the evaluative stance that such excellences do not make her fundamentally worthier. Thus, she is less likely to accept and enjoy the praise that she thinks she does not deserve. Also, a modest person tends not to dwell on her superior qualities or show them off because she does not find the source of her self-esteem in possession of such qualities or others’ recognition of them.

 

The moderate evaluative attitude can also explain why a modest person tends not to care excessively about her rank or relative social position. This is because a modest person is disposed not to ground her self-esteem in the rank of her qualities among others’, and thus tends not to regard their comparative value as important. This point also explains why the modest person is less likely to overrank herself. This is because her evaluation is not easily biased by the self-centered incentive for higher rank. She is thus more likely to make an accurate assessment of her own qualities.

 

It is important to note that, on my account, these apparent features are not themselves constitutive of modesty. This has two implications. On the one hand, the apparent features of modesty mentioned above do not necessarily instantiate modesty; modesty is instantiated only when and to the extent that those apparent features express or are based on the underlying moderate evaluative attitude. On the other hand, the apparent features of immodesty may not actually instantiate immodesty. That is, as far as a person retains the moderate evaluative attitude, she would not be disqualified as a modest person just because she displays certain patterns of behavior, desire, cognition, or attention that appear inappropriate for or incompatible with modesty. For example, a modest person on my account may sometimes enjoy contemplating her good qualities or draw other people’s attention to them. Not all cases of ‘apparent immodesty’ instantiate a failure in modesty; some of them may be compatible with, though not particularly expressive of, modesty.

 

Then, how can we distinguish an instance of apparent immodesty that is compatible with modesty from one that is not? My suggestion is that apparent features of immodesty instantiate immodesty when they express some attitude incompatible with the modest evaluative attitude. To see this point more clearly, compare the following two cases. Suppose that Ben the gold medalist occasionally talks about the medal he won in the Olympics to enjoy the feeling of high self-esteem he takes from other people’s positive evaluation of his superior athletic ability. Ben’s act of mentioning his achievement in this case instantiates immodesty, since the attitude expressed here is incompatible with the moderate evaluative attitude. Now consider Sam the award-winning tutor. He mentions to his student that he has earned many teaching awards, but, unlike Ben, only to help the student learn better by building her trust in his ability as a teacher. (Suppose that there was no better way to earn her trust.) There is no intention to bathe in the student’s admiration or indulge in his past achievements. In this case, since Sam’s act of mentioning his achievements is not motivated by any attitude incompatible with the moderate evaluative attitude, it does not instantiate immodesty.

 


Sungwoo Um is a PhD candidate in the Philosophy Department and the Assistant Director of the Center for Comparative Philosophy (CCP) at Duke University. He holds philosophy degrees from Oxford University (BPhil) and Yonsei University (BA and MA). He works mainly in ethics, moral psychology, and social and political philosophy. Um was a participant in the Virtue, Happiness, & Meaning of Life “Virtue & Happiness” Summer Session in 2016.

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. 

Video: Candace Vogler and Rev. Lola Wright at the Chicago Humanities Festival

Candace Vogler spoke with Reverend Lola Wright about about her work as principal investigator of our project on self-transcendence as the key to the connections between virtue, happiness, and the meaning of life, for the Chicago Humanities Festival Fallfest17: Belief! on Sunday, November 12, 2017 at the Chicago Sinai Congregation.

Research suggests that individuals who feel they belong to something bigger than just themselves—an extended family, a spiritual practice, work for social justice—often feel happier and have better life outcomes than those who do not. This sense of connection has a name in academia: “self-transcendence.”

Learn more about RevLo and Candace and this event here.