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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
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.
have any experience of this great dilemma? Drop me a line
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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.
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
- Michael Monninger writes
from Paris for "Die Zeit", in which a longer view of this article first
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
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
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
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
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
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.
Does international law have
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.
Numerous rogue states are
members of the UN.
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
The US is the only country
with democratic universalist ideas which wants to export its values.