Corporate intent: in search for a theoretical foundation for corporate mens rea

Abstract

Since the acceptance of corporate criminal liability criminal law doctrine has been looking for an adequate way to fully and properly incorporate the legal person into the established framework theories on actus reus and mens rea. Anthropomorphic approaches have proven to be inadequate and undesirable. A model of corporate culpability is favored by many, but few have been able to contemplate such a model. After all, such a model should not only live up to its aspirations on an abstract theoretical level by providing a sound foundation for liability, but should also work for legal practitioners. Research in the field of economic crimes has a long history in the Willem Pompe Institute and in true Pompean tradition this article aims to enrich the current state of corporate criminal liability with new insights from a non-legal, but still normative discipline: business ethics. After all, questions of responsibility and accountability are not merely legal in nature. This contribution addresses the question whether Bratman’s theory of shared intentions – intentions which can be traced back to a ‘web of attitudes of the individual participants’ – could provide the desired solid foundation mentioned above. Does this theory allow for the construction of corporate mens rea without resulting to overly complex routes of attribution or farfetched, and as a consequence thereof feeble, lines of legal reasoning? Thus, an overarching concept or framework could be created which incorporates both of the traditional models for establishing corporate mens rea, and, hopefully, helps criminal law theory to move beyond the current false discrepancy between attributed and ‘own’ culpability.