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item0042A  720, 721

720  20 May 2003   

fog is dangerous...

...and fog abounds, in the debate about "corporate manslaughter".  The Government has a manifesto commitment to penalise corporate manslaughter - but there is a problem!  What on earth does the term mean?

Governments have hitherto failed to find a way through the legal maze of artificial personality. And public opinion is profoundly confused, as is professional opinion.  There are in fact two problems, not one - and in legal terms they are quite unrelated.

First: how does society express its disapproval of the behaviour of an artificial person?  Value judgments of this kind, when addressed to personal behaviour (i.e. that of natural persons), are reflected in the definition of, and punishment for, a "crime" or prohibited act.  But that reasoning, which is at least part one of deterrence, is relevant only to "natural persons", who are able to plan their behaviour and calculate its consequences.  An abstract, artificial person has no mind, can have no intention, and cannot therefore "commit a crime" in the conventional sense.  Yet given the preeminence of such artificial persons in the public mind, popular opinion demands that "the company" be punished, along with the wrongdoing of any particular person.  The dumb instrument must be punished along with the person - just as in mediaeval English law.

  • NB This is a problem without a solution - it may well prove necessary to "fine the artificial person" more heavily, just to satisfy public opinion.  But the exercise is a peculiarly pointless one, once properly understood.

Second: how can company managers be held personally responsible for damage caused by their own faulty management, by recklessness or negligence or even deliberate instruction?  That question, by contrast, is easily answered: Parliament can do that, at any time.  Indeed, in many modern statutes, Parliament has actually listed Directors and managers as open to prosecution alongside the company - waste management is one area in which this has been done extensively, and the method is very effective.  Restrictive practice law also permits manager-prosecution.  But there are many criminal codes where this issue has not been clarified: the managers of the Spirit of Free Enterprise should never have been allowed to go unpunished.  This could not however be dealt with by way of general legislation - it would require Parliament, whenever it created new crimes, to address specifically the question of who can be prosecuted for its commission - both the artificial and the natural person?  Or only the one or the other?  And retrospectively, every Act would have to be reconsidered, and the enforcement provisions re-defined.

  • NB  This is what the lawyers call "piercing the corporate veil" - where the Court is permitted to ignore the shell of artificial personality and punish the underlying individual behaviour.

We now know that the Government is planning to address the first issue, but not the second.  That will partially satisfy public demand, and it will create a huge market for "safe system" consultancy, advising on the installation of administrative systems which will constitute a defence to the artificial person (i.e. the "company"), when prosecuted for systemic failures.  But the proposed reforms will do nothing to "put guilty men behind bars" - which is the second issue, not the first.  All that will happen is that large fines will be levied on companies, for the shareholders (i.e many of our pension funds) to pay...

So the ambiguity has been resolved, and the Government has selected the softer target.  And on that score, it is clear that popular unease - the widespread resentment of reckless or careless managers - will not be placted.

Do you have any experience of this great dilemma?  Drop me a line

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721   27 May  2003  

Extract from Prospect, June 2003

Interview with Emmanuel Todd, by Michael Monninger

Many French intellectuals see their country as leading the challenge to US power.  Few are as outspoken as Emmanuel Todd, the author of "Apres l'Empire", a best-seller prophesying the decline of America.

  • Michael Monninger writes from Paris for "Die Zeit", in which a longer view of this article first appeared.
Monninger  You predicted the fall of the Soviet Union, 25 years ago,.  Now you speak of fall of the US, which has just won the war in Iraq. How come?

Emmanuel Todd   The war against Iraq was a military absurdity.  The US won a victory over a country with a barefoot army which had been bled dry. It demonstrated its military omnipotence in Iraq in order to hide its economic weaknesses.  True rivalry will no longer be settled using military force. The real counterbalance to the US is found in Europe, Russia, China and Japan.  The main battlefield will be the economic sector.

Monninger  Isn't that anti-American wishful thinking?

Emmanuel Todd   Actually, I like the US a great deal.  Until recently, it was the most important factor in maintaining international order.  But now it is a factor for instability.  The industrial core of the US has been hollowed out.  The American trade deficit amounts to $435bn a year - the country needs 1.5bn a day in foreign capital.  The US is no longer self-sufficient.  Europe, with its strength in exports, is.

Monninger  But the US is the undisputed global power...

Emmanuel Todd   The US was the undisputed victor of the 20th century Now it has difficulty in recognising its own dependence.  Hitherto, the Europeans envied the US its standard of living and technological power.  This generated a certain modesty. Nowadays, the US leads only in military terms.  In most spheres the Europeans have overtaken it.

Monninger  But Europe has been torn apart politically...

Emmanuel Todd   Europe's strength is based on economic integration, which is independent of political decisions.  Whether Governments in Eastern Europe like it or not, they are economically tied to Europe and Russia.  The only things they can get from America are weapons: Americans cannot export anything else.  The US has created dissidents in "new" Europe, but the latter still depend on "old" Europe and Russia.  Turkey realised this, and has kept its distance from the US.

Monninger  But Europe isn't a cash register, as Dominique de Villepin put it...

Emmanuel Todd   Europe still does not have a common foreign policy.  Until now it has always been in America's retinue.   Now the Germans have reclaimed their foreign policy, and one cannot overestimate the strategic and symbolic dimensions of this.  In conjunction with France, there is a core of political renewal independent of the US, and with mass popular support.  Spain, Britain, Italy and the east Europeans represent the "old" Europe, since they have not yet achieved autonomy.

Monninger  How can the relationship between France and Germany and the British be repaired?

Emmanuel Todd  Blair has been trying for years to be included in the German-French process, but he discovered during the crisis that the two stick together when the going gets tough.  We must appreciate the difficulty that the British have.  They have real historical and cultural ties with the US, but at the same time they are Europeans.  I hope that the British will find their way back into Europe.  The driving force behind this will be the renewed violence and and arrogance of the Americans.  The British will realise of their own accord that they belong to Europe's community of values.

Monninger  What about the war on terror?

Emmanuel Todd  The omnipresence of terrorism is a powerful myth, thanks to which the US has assumed the right to crusade around the world, whether in the Philippines. the Yemen or Iraq.  The US wants to keep the world on tenterhooks by means of this permanent sense of war.  But military methods don't help, in the fight against terrorism.  Only police and secret service work can help.  The terrorist threat could have been minimised in this way since 9/11, but the collective psychosis of the Americans did not allow that.

Monninger  What about the attacks in Djerba and Bali?

Emmanuel Todd  They were horrific massacres, but they were not any threat to world politics.  These attacks on Islamic soil showed rather the killers' inability to take terror to the West.  There were no attacks in Europe following 9/11.  I am a demographer, and I'll stick to the facts.  Arab and Islamic terrorism is not a relapse of these regions into barbarism - it is the result of a crisis in the modernisation process.  All countries go through radical changes as a result of literacy and birth control.  Because all the Islamic states have been weakened, there is no great power among them.  The terrorism will disappear of its own accord with the end of the demographic revolution.

Monninger  What about about "weapons of mass destruction"? 

Emmanuel Todd  Hitherto, the most lethal terrorist attack in New York was not carried out using poison gas, but using knives and civilian airliners.  Only police and secret service work can counter that.  The anthrax attacks, on the other hand, came from within American itself.  The danger is now that terrorism will be given a new impetus by the invasion of Iraq.  Likewise, certain countries will only feel safe from US air supremacy if they do now develop such weapons.

Monninger  What about rogue states that back terror?

Emmanuel Todd  The Afghanistan of the Taliban was a product of US and Russian reconstruction.  In contrast, Iraq was a bloody dictatorship, but it was not a rogue state that supported terrorists.   Iran is also not a rogue state, but is modernising towards a pluralistic system.

Monninger  Does international law have a future?

Emmanuel Todd  The majority of the UN was opposed to war in Iraq.  In spite of this, the US went ahead, and thus violated international law.  The UN's role has never been so important.  In view of America's destabilising role, one might consider whether the UN Security Council should move to Europe, perhaps to Switzerland.

Monninger  Numerous rogue states are members of the UN.

Emmanuel Todd  The UN is not a club of democracies, but an organisation which tries to solve problems between countries without resorting to war.  In recent years there has been enormous progress towards democratisation.  This has not been imposed from outside: it is the result of education and the emancipation of women.  We cannot start a war against Syria or China in order to introduce democracy in these places.

Monninger  The US is the only country with democratic universalist ideas which wants to export its values.

Emmanuel Todd  The Iraq War was a geopolitical show of strength, not a selfless democratic mission.  But the Europeans must demand that the US does now put democracy into practice in Iraq.  With the overthrow of Saddam comes the end of American hypocrisy.  In this respect, I am a long way from the deep-seated anti-Americanism of many of the French.  My grandfather was an Austrian Jew and an American citizen.  My mother fled to the US during WW2.  I have a positive attitude towards America.

But sadly, we can no longer speak of the US as a great democracy.   Its electoral system is in crisis.  Internal inequality is rising.  A rich American is no longer comparable with a rich European.  There exists a new plutocracy, which is spoiling the American dream.  Since the financial scandals, faith in the free market has been destroyed.  The US is projecting its own internal disintegration upon the whole world.

Monninger  Is America also weakened because it has had to bear the burden of keeping the peace for fifty years?

Emmanuel Todd  After 9/11, the threat to the US, to a nation which had until then been considered the guarantor of global security, stirred up great anxiety all around the world.  Every country wanted to help.  But the Americans didn't want help.  They listened less and less to their allies, and became more and more arrogant.

As far as the balance sheet and the financial flows are concerned, the US has long been a drain upon the whole world.  The Europeans can no longer reply to this in a friendly manner: they must counter America with financial and industrial methods.

Monninger  But won't the power imbalance in favour of the US continue to grow, regardless?

Emmanuel Todd  If there is no opposition to American militarism then - as the Europeans well know from their own wars - it will be encouraged to pursue more adventures.  Europe and Russia must create a stable strategic structure to counter it. The Atlantic axis no longer exists.

Monninger  Is Russia a reliable partner?

Emmanuel Todd  Russia is no longer dangerous.  The Germans obviously see this in a different light to the French, who have fewer problems with the Russians.  Russia is weak, and is experiencing a similar demographic crisis to that of Germany and France.

Monninger  Would you like a complete break with the US?

Emmanuel Todd  No - I feel a much closer affinity to Anglo-Saxon culture than to Russian culture.  But we need a counterbalance to the US.  It is not so much a question of a break as a question of autonomy.  In order to avoid an antagonistic relationship with the US, it is important that Britain should come back into the European fold.  The greater danger is that the US will become more antagonistic and more anti-European.  The EU and the UN are strong, but NATO is virtually useless.  Russian is a more important guarantor of European security.

Monninger   What can the US do to prevent decline?

Emmanuel Todd  For the moment, the US has chosen the military path.  It would be better for it to strive for industrial reconstruction, to become productive again.  The world believes that, thanks to its victory in Iraq, the US has achieved worldwide leadership.  In fact, it used military means in response to a non-military problem.  I believe this shows that it has lost its omnipotence.

What do you think?  Drop me a line

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